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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM 20-F
[ ] REGISTRATION STATEMENT PURSUANT TO SECTION 12(b) OR (g) OF THE SECURITIES
EXCHANGE ACT OF 1934
[X] ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES ACT OF 1934
for the fiscal year ended June 30, 1997
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the transition period from _____________ to _____________
Commission File Number: 0-29144
ILOG S.A.
(exact name of Registrant as specified in its charter)
The Republic of France
(Jurisdiction of incorporation or organization)
9, rue de Verdun, 94253 Gentilly, France
(Address of principal executive offices)
Securities registered or to be registered pursuant to Section 12(b) of the Act:
None
Securities registered or to be registered pursuant to Section 12(g) of the Act:
None
Title of each class: Name of each exchange on which registered:
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American Depositary Shares, each
representing one Ordinary Share Nasdaq National Market
Ordinary Shares Nasdaq National Market*
*Not for trading, but only in connection with the American Depositary Shares.
-----------------------------
Securities for which there is a reporting obligation pursuant to Section 15(d)
of the Act: None
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The number of outstanding shares of each of the issuer's classes of capital
or common stock as of June 30, 1997 was 10,959,622 Ordinary Shares of FF 4.00
nominal value, including 2,503,250 American Depositary Shares (as evidenced by
American Depositary Receipts), each corresponding to one Ordinary Share.
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days.
[X] Yes [ ] No
No Indicate by check mark which financial statement item the registrant has
elected to follow.
[ ] Item 17 [X] Item 18
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Unless the context otherwise requires, references herein to "the
Company" or to "ILOG" are to ILOG S.A. and its consolidated subsidiaries.
----------------------
The Company's name together with its logo is registered as a trademark
in France, the United States and a number of other countries. This Annual Report
on Form 20-F may also contain tradenames or trademarks of companies other than
ILOG.
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EXCHANGE RATES
ILOG publishes its financial statements in dollars. In this Annual
Report on Form 20-F, references to "dollars" or "$"are to U.S. dollars and
references to "francs" of "FF" are to French francs. Except as otherwise stated
herein, all monetary amounts in this Annual Report on Form 20-F have been
presented in dollars.
The table below sets forth, for information purposes only, for the
periods indicated, the high, low, average and end of period noon buying rates in
New York City for cable transfers in French francs as certified for customs
purposes by the Federal Reserve Bank of New York ("Noon Buying Rate") for the
franc against the dollar. Such rates are not used by the Company in the
preparation of its consolidated financial statements included elsewhere in this
Annual Report on Form 20-F. See Note 1 of Notes to Consolidated Financial
Statements.
<TABLE>
<CAPTION>
AVERAGE END OF
YEAR ENDED JUNE 30, HIGH LOW RATE(1) PERIOD
- ------------------- ---- --- ------- ------
(FRANCS PER DOLLAR)
<S> <C> <C> <C> <C>
1993 5.75 4.74 5.31 5.74
1994 6.06 5.41 5.80 5.44
1995 5.46 4.79 5.18 4.85
1996 5.19 4.78 5.02 5.15
1997 5.87 5.00 5.42 5.87
</TABLE>
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(1) The average of the Noon Buying Rates on the last business day of each month
during the year.
For information regarding the effects of currency fluctuations on the
Company's results, see Item 9, "Management's Discussion and Analysis of
Financial Condition and Results of Operations.
----------------------
AMERICAN DEPOSITARY SHARES
Pursuant to a program sponsored by the Company, ordinary shares of the
Company (the "Shares") are traded in the United States in the form of American
Depositary Shares ("ADSs"), each ADS representing one Share placed on deposit
with Morgan Guaranty Trust Company of New York, as depositary (the "Depositary")
and issued and delivered by the Depositary through its principal office in New
York City at 60 Wall Street, (36th Floor), New York, New York, 10260. Under the
terms of the Deposit Agreement, dated as of February 13, 1997 and amended on
August 20, 1997, among the Company, the Depositary and the holders from time to
time of ADSs (the "Deposit Agreement"), Shares may be deposited with the Paris
office of Banque Paribas, as custodian (the "Custodian"), or any successor or
successors to such Custodian. The Depositary provides a variety of services to
investors, as more fully set forth in the form of Deposit Agreement filed as an
exhibit to the Company's Registration Statement on Form F-6 filed with the
Securities and Exchange Commission on February 13, 1997.
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TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
PART I
Item 1. Description of Business 4
Item 2. Description of Property 18
Item 3. Legal Proceedings 18
Item 4. Control of Registrant 19
Item 5. Nature of Trading Market 19
Item 6. Exchange Controls and Other Limitations Affecting Security Holders 20
Item 7. Taxation 20
Item 8. Selected Financial Data 25
Item 9. Management's Discussion and Analysis of Financial Condition and Results of Operations 26
Item 10. Directors and Officers of Registrant 40
Item 11. Compensation of Directors and Officers 44
Item 12. Options to Purchase Securities from Registrant or Subsidiaries 44
Item 13. Interest of Management in Certain Transactions 46
PART II
Item 14. Description of Securities to be Registered F-1
PART III
Item 15. Defaults Upon Senior Securities F-1
Item 16. Changes in Securities and Changes in Security for Registered Securities F-1
PART IV
Item 17. Financial Statements F-1
Item 18. Financial Statements F-1
Item 19. Financial Statements and Exhibits F-1
</TABLE>
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FORWARD LOOKING STATEMENTS
In addition to historical information, this Annual Report contains
forward looking statements within the meaning of Section 27A of the Securities
Act of 1933, as amended, and Section 21E of the Securities Exchange Act, as
amended. The forward-looking statements contained herein are subject to certain
risks and uncertainties that could cause actual results to differ materially
form those reflected in the forward-looking statements. Factors that might cause
such a difference include, but are not limited to, those discussed in the
section entitled "Management's Discussion and Analysis of Financial Condition
and Results of Operations--Risk Factors." Readers are cautioned not to place
undue reliance on these forward-looking statements, which reflect management's
analysis only as of the date hereof. ILOG undertakes no obligation to publicly
revise these forward-looking statements to reflect events or circumstances that
arise after the date hereof. Readers should carefully review the risk factors
described in other documents the Company files from time to time with the
Securities and Exchange Commission, including reports on Form 6-K filed by the
Company in 1997.
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PART I
ITEM 1. DESCRIPTION OF BUSINESS
BUSINESS
ILOG develops, markets and supports advanced software class libraries
for user interface, resource optimization and data services functions that are
fundamental to the development of strategic business applications. By creating
pre- built and pre-tested features to address these common software functions,
the Company's object oriented libraries reduce the time, cost and risk in the
development process, and allow users to focus their own efforts on value-added,
business specific programming tasks. The Company's libraries provide high
performance and scalability, run on the most popular Windows and Unix platforms,
and can be used to facilitate client-side, server-side or Web development
efforts. The Company also offers a range of consulting, customer training and
maintenance services to supplement its libraries.
ILOG's C, C++ and Java software class libraries address common strategic
business software development needs. These needs include user interface,
resource optimization and data services such as information coordination among
applications and databases. The Company's libraries can be purchased for
integration into new or existing applications individually or in combination
with other libraries. The Company is enhancing the performance and scalability
of its current libraries, porting them to different platforms and additional
programming languages and expanding the number of libraries to address common
software development needs. For example, the Company is being funded by Nortel
to develop a telecom graphics class library for network management solutions,
which is expected to be available in 1998. The Company has also commenced
licensing third party add-ons to its libraries where appropriate to improve
functionality coverage.
BACKGROUND
Increasing global competition and rapid changes in technology are
accelerating the demand by organizations for strategic business applications to
achieve competitive advantage. However, organizations face significant
challenges in developing strategic business applications that can keep pace with
this changing environment. These challenges include meeting the demand for new
applications, adapting these applications as business needs evolve and taking
advantage of new technologies such as distributed client server computing and
the Internet/intranet. The result is a large and increasing backlog of strategic
business applications that need to be developed, maintained and enhanced.
Organizations address their needs for strategic business software either
by purchasing packaged applications or writing their own applications. Packaged
applications are used for certain systems, such as back-office accounting, human
resources and order management, where the tasks are well defined. Where
organizations have specific needs and seek a proprietary advantage, but are
unable to customize fully packaged applications that meet their needs, they will
seek to build their own applications.
Software development is a lengthy and difficult process. Developers must
build user interfaces, provide resource optimization and data services functions
into their applications as well as other structural layers of development. The
Company believes that these common programming functions typically represent
between 15% and 40% of the number of lines of code for strategic business
applications. The challenge of undertaking all these programming tasks increases
the risk of failure and time to market, and requires significant additional
expertise and maintenance. A recent study by the Standish Group found that only
16% of large software development projects are completed on time and budget,
while three-quarters of these projects are more than 100% over budget,
significantly behind schedule or canceled before completion.
The shortage and high cost of software developers for strategic business
applications has created a need for a hybrid approach to software development
that combines the advantages of custom developed software with pre-built and
pre-tested software components or libraries. The emergence of object oriented
technology allows for the creation of pre-built software class libraries that
address common programming tasks, thus allowing programmers to shorten
development time by combining these libraries with their own programming. In
order for these class libraries to meet
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the evolving business and technology requirements of the specific organization,
they must provide high performance and scalability and yet be open and
adaptable.
THE ILOG SOLUTION
ILOG develops, markets and supports advanced software class libraries
for user interface, resource optimization and data services functions that are
fundamental to the development of strategic business applications. The Company's
object oriented libraries, which are written in the C, C++ and Java languages,
can be readily adapted to application development requirements. Since ILOG has
effectively pre-written many of the complex portions of each application,
enterprises can concentrate on the development of other portions of the
application that are specific to their respective businesses. The Company
believes that its libraries provide users with the following benefits:
Time to Market and Cost Reduction. ILOG libraries allow enterprises and
Independent Software Vendors ("ISVs") to accelerate development time
significantly. The cost of a development license for an ILOG library is
substantially less than the cost for an organization to develop those same
features internally. Moreover, ILOG's continuing maintenance and improvement of
its libraries ensures periodic performance and functionality enhancements for
its customers.
High Performance and Scalability. The proprietary algorithms embedded in
ILOG libraries are highly efficient and scale well to complex application needs.
Applications using ILOG libraries can run efficiently on small PCs as well as on
the most powerful workstations and servers because ILOG libraries are both CPU
and memory efficient. Intensive users can display or manage tens of thousands of
objects. ILOG libraries are currently being used in demanding applications such
as real-time air traffic control, securities trading, network management,
industrial control and military command and control.
Ease of Use. The Company's libraries consist of layers of components
that can be used without modification if the customer so elects. With a few
lines of code, developers can implement their enterprise specific components on
top of the Company's high level components.
Flexibility. Unlike many components that are inflexible black boxes, the
Company's components are built as documented layered classes. The lower layers
can be exposed to allow programming changes at all levels of the component's
behavior to meet individual business specific requirements.
Development Risk Reduction. The common development task components
provided by the ILOG libraries enable software developers to rapidly prototype
and test the performance of an application. Developers are able to quickly
confirm that the envisioned system successfully addresses the problems and will
withstand its final design load before they enter into the detailed
specification and design of the actual application. This approach greatly
decreases the technical risks associated with the creation of a new application
by providing a sound, pre-built infrastructure.
Hardware and Operating System Independence. The programming interfaces
for ILOG libraries are identical for all platforms that the Company addresses,
which makes deploying applications across PCs and workstations easier.
Development Strategy Independence. ILOG libraries are open (i.e.,
compatible with most development environments, compilers or methodologies and
software testing tools). The Company's customers can choose libraries from other
vendors and combine them with ILOG libraries in a true open environment.
STRATEGY
ILOG's objective is to be the leading worldwide provider of object
oriented software class libraries and optimization algorithms. Key elements of
the Company's strategy to achieve this objective include the following:
Extend Technological Leadership. The Company intends to maintain and
extend its current technological leadership as a provider of object oriented
software class libraries. The Company intends to focus its development efforts
on enhancing the performance and scalability of its current libraries, porting
them to different platforms and additional
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programming languages and expanding the number of libraries to address common
software development needs. For example, the Company has recently introduced a
Java version of its C++ graphical library ILOG Views. As part of the strategy of
extending its technological leadership position, the Company, in August 1997,
acquired the business of CPLEX Optimization, Inc., an established leader in math
programming optimization libraries.
Expand Sales Geographically. The Company's sales have historically been
concentrated in Europe, particularly in France. The Company believes that the
North American and Asian markets represent large growth opportunities for its
libraries. Since the beginning of 1995, the Company has significantly expanded
its sales effort by adding substantially to its U.S. and Asian direct sales
forces, which has resulted in rapid growth in these regions. The Company intends
to continue to add to its direct sales and consulting forces in all of its three
principal geographic regions.
Penetrate Vertical Market Base. The Company to date has sold its
libraries primarily to customers in the telecommunications, defense,
transportation, manufacturing and finance markets. The Company seeks to
penetrate vertical markets through partnerships with OEMs, VARs, and system
integrators. Where such partners do not exist, the Company believes that
developing expertise and references in these vertical markets is important to
marketing and selling its libraries successfully into these industries. In
particular, the Company is actively marketing within the Telecom industry sector
from which approximately 40% of its revenues are currently derived.
License Complementary Libraries from Third Parties. The Company's
customers are currently building add-on libraries using the Company's software
class libraries and the Company intends to license and resell worldwide some of
these add-on products. In this way, the Company hopes to promote the use of
software class libraries by developers worldwide.
Increase Penetration of Existing Customer Base. The Company intends to
expand sales of its libraries to its existing customers. Since the Company's
libraries are initially licensed to a few developers for benchmarking projects
inside an enterprise, the successful completion of these projects and the
launching of additional software design projects within a customer's
organization create additional sales opportunities for the Company. The Company
uses the success of projects with existing customers as an internal reference
for horizontal expansion within that organization through on-site seminars and
other marketing events.
Expand ISV Agreements. The Company has agreements with approximately 80
ISVs and intends to sell its libraries to additional ISVs for inclusion in
packaged software products. Due to the recurring revenue nature of the royalty
payments made by ISVs that ultimately include one or more ILOG libraries in
their products, the Company is currently increasing its marketing efforts to
ISVs. A significant part of the revenues received from the Company's CPLEX
products, which were acquired in August 1997, are from ISVs and Indirect Sales
Channels.
Expand Indirect Sales Channels. The Company intends to expand its global
sales capabilities by increasing the number of system integrators, VARs and OEMs
that market its libraries worldwide and the number of distributors where it does
not have a local presence. The Company believes that these sales channels will
allow the Company to access additional vertical and geographic markets where it
does not currently possess marketing or sales capabilities.
COMPONENT AND LIBRARY TECHNOLOGY
The Company believes that the software component technology development
path is analogous to the integrated circuit revolution of the 1970s. At that
time, the components used to build circuit boards were elementary fine-grain
components such as capacitors, resistors and transistors. The advent of packaged
larger-grain integrated circuits precipitated a shift in the computer
manufacturing industry, from a model where every computer manufacturer built its
own boards from self-defined designs that assembled fine-grain components to a
model where much larger components were integrated onto much smaller boards.
This shift considerably reduced the time and risk of designing new boards, as
well as the cost of mass-producing them. The result was less expensive
computers.
The Company believes that software component technology offers to the
software industry a similar potential to that which integrated circuits offered
the computer hardware industry. Software components are predefined pieces of
readily reusable software. These components provide ready-made, high level
functions without requiring software
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developers to understand the internals of the components. This allows developers
to focus on the use of these higher- level functions to achieve the
business-specific results that the application requires. For example, a Gantt
diagram (a standard scheduling graphic) component will display the use of
resources by activities over time in a predefined fashion. The application
developer using such a component will not have to program the details of the
diagrams, but rather can concentrate on the definition of the activities, the
resources and their relationships. The developer will therefore be able to
develop a scheduling application that includes a Gantt diagram more rapidly.
Components have been used in user interfaces for more than ten years.
Menu bars, push buttons and selection boxes are reusable components that are
available on operating systems such as Windows, Unix and Macintosh. The
inflexible black-box nature of many of these components, however, can prevent
software developers from obtaining the desired effect. For example, a developer
may wish to create a read-only Gantt diagram that only displays information. If
the component has been built without this feature, the development speed gained
by the use of the predefined component is lost by the difficulty encountered in
designing around some of its predefined behaviors.
Components created using object oriented technology add significant
flexibility. Using a component for a specific application often requires adding
new behaviors. Object oriented programming involves a cloning process that
allows developers to add new behaviors to existing classes of objects. This
"extensibility" is the principal reason that well-implemented object oriented
code has a longer life than traditional code. Object attributes (data) and
methods (behaviors) can be added to or changed without altering the original
"base classes," so that changes as the object environment evolves are
transparent to applications dependent on the base class. As a result of the
ability to further specify the behavior of code after it has been designed,
written and tested, object oriented technology allows the large-scale reuse of
components without sacrificing the flexibility needed for application-specific
behavior and optimization.
Object oriented techniques greatly simplify the development of complex
strategic business applications. Each coherent part of the task is represented
as a set of interdependent classes assembled together using a protocol. Some of
these classes will be reused as large grain components, others as fine-detail
implementation classes useful only for extension purposes.
In the example of the Gantt diagram, the elementary bars that appear in
the drawing can be thought of as instances of classes that are more fine-grained
than the Gantt diagram top level class. With this design, flexibility is pushed
one step further. It is now possible not only to extend the global Gantt object,
but also to extend some of its internals as well. For example, the developer may
wish to draw activities in a Gantt diagram in a different way, where a new
element of information is added to each of the bars. In that case, the developer
will extend the bar class of the Gantt-diagram library, instead of the
Gantt-diagram class. This is the flexibility that object oriented libraries are
intended to achieve.
Object oriented libraries, or class libraries, are coherent sets of
predefined components written in an object oriented language in such a way that
black-box components become clear-box components that can be redefined locally
when some behaviors do not match the exact needs of the application. Therefore,
object oriented libraries that cover a particular infrastructure task, such as
user interface programming, are more than a set of independent components.
Object oriented libraries consist of layers of components, where each layer
relies on documented extensible lower components.
PRODUCTS
The Company's products are high-performance C, C++ and Java software
class libraries sold in binary form on CD-ROMs. The Company's class libraries
are sold to C, C++ and Java developers within information technology (IT or MIS)
departments of end-user enterprises or to system integrators, ISVs, VARs and
OEMs. The libraries facilitate rapid development and deployment of complex
applications by providing pre-written portions of the software in order to
reduce the time, cost and risk of the development cycle. The Company's libraries
are independent and can be purchased for integration into new or existing
applications individually or in combination with other libraries. The libraries
run on the most popular Windows and Unix platforms and can be used to facilitate
client-side, server-side or Web development efforts.
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The Company typically commences a customer relationship with one or more
licenses to use one or two of the Company's products for a given customer
development project. A development license for one of the Company's products
normally ranges from $2,500 to $20,000, with an average development sale of
approximately $20,000. Once the customer completes its development projects, it
must enter into run time licenses with the Company in order to use any of the
Company's resource optimization or data services libraries needed to deploy the
developed application within or outside its organization. A customer typically
does not purchase any run time licenses until the successful completion of the
application development process, which typically takes at least six months from
the initial order. Such run time licenses range from $5,000 to $500,000
depending upon the future number of simultaneous users of the application, the
number of different sites on which this application will be deployed and the
number and type of ILOG libraries used in the application.
The following table sets forth certain information regarding the
libraries licensed by the Company:
<TABLE>
<CAPTION>
YEAR OF FIRST
COMMERCIAL
PRODUCT CATEGORY AND NAME SHIPMENT PRODUCT DESCRIPTION
- ------------------------- ------------- ------------------------------------------------------------------
<S> <C> <C>
USER INTERFACE
ILOG Views 1993 Data visualization and graphical user interface environment in C++
ILOG InForm 1996 Data visualization for database applications
ILOG Vision 1996 3-D structured graphics environment
ILOG JViews 1997 Data visualization in Java
RESOURCE OPTIMIZATION
ILOG Rules 1993 Real-time agents for monitoring and controlling data flows
ILOG Solver 1993 Constraint-based reasoning for resource allocation
ILOG Scheduler 1994 Add-on product for Solver primarily for short-term scheduling
ILOG Planner 1996 Add-on product for Solver primarily for long-term planning
ILOG CPLEX 1997 High performance C libraries for linear programming
DATA SERVICES
ILOG DB-Link 1994 Portable database access from C++
ILOG Server 1995 Real-time event notification and object modeling
ILOG Broker 1995 Distribution of application objects among computers
</TABLE>
Historically, the Company has made minor revisions to its products
approximately every six months and has released new versions of its products
every 12 to 18 months.
The following describes the Company's software class libraries by
product category.
User Interface Libraries
The Company currently markets four user interface libraries: ILOG Views,
ILOG JViews, ILOG InForm and ILOG Vision. Approximately 55% of the Company's
revenues from license fees for 1997 were derived from ILOG Views. See "Risk
Factors--Product Concentration Risk."
ILOG Views and JViews are each a comprehensive data visualization and
graphical user interface environment providing components for structured
two-dimensional graphics. ILOG Views is used to solve a wide range of graphics
problems in industrial and commercial environments. ILOG Views is composed of a
core technological layer and a number of pre-defined, high-level graphical
components.
The core layer provides performance and portability (i.e., the ability
to implement platform independent interfaces) and the object oriented
representations of all the basic graphical entities. This layer provides
developers with hundreds of classes of graphical objects and methods to
construct highly interactive graphical environments, allowing real-time display
of up to 15,000 graphical objects in a single display space. Applications can
rapidly pan and zoom within this virtual display area, allowing selection and
manipulation of objects anywhere in the display. The Company
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believes its emphasis on performance represents an important advantage of ILOG
Views for implementing the graphical user interface of complex applications such
as real- time network supervision.
ILOG Views also includes a number of pre-defined, high-level display
components, including a grapher, maps, graphs, a spreadsheet, a Gantt diagram, a
hypertext viewer and a graphical user interface ("GUI") editor. The ILOG Views
Grapher allows an application developer to represent entities as nodes and arcs
linking these nodes. Due to the object oriented nature of ILOG Views Grapher,
the developer can easily define application specific aspects and behaviors for
both the nodes and the arcs, as well as superimpose the graph on top of a map
representing the geography of the application. These features are implemented
with a small number of lines of C++ or Java code, because they reuse all the
common classes of both the underlying graphic engine and the Grapher.
The Gantt diagram is another predefined ILOG Views component that is
very useful for ILOG Scheduler customers. Other graphic components, such as ILOG
Views Gadgets, allow for the implementation of the structural part of the GUI in
a portable link between platforms like Unix Motif and Microsoft Windows.
Available as a component or within an interactive Interface Builder, ILOG Views
Gadgets provides a simple way to rapidly construct the parts of an application's
GUI. Furthermore, ILOG Views presents an extensible class for building
specialized high-performance graphics editors that customers can use to
manipulate complex objects. Each of these customer-defined components can be
used to accelerate further the construction of highly customized display
environments.
ILOG InForm is an extension of ILOG Views that facilitates the
development of graphic-intensive database applications. Client server
applications involving multiple databases can be built almost entirely in a
drag-and-drop environment, without requiring Structured Query Language ("SQL")
or significant C++ coding. The Company believes that ILOG InForm has an
advantage over competing products because it works with native C++ objects,
which facilitates higher performance and more efficient development. ILOG InForm
also exploits all of a customer's prior ILOG Views development and automatically
generates C++ objects that can be used in other development projects. ILOG
InForm allows routine applications to be constructed by users or developers with
limited C++ knowledge or related tools.
ILOG InForm provides three advancements to the underlying ILOG Views
feature set: Studio, Data Sources and Data-Aware gadgets. ILOG InForm Studio
provides an intuitive environment for rapid application development and testing,
and adds new visual items that are useful for common database applications such
as data entry and review. Because ILOG InForm Studio is a superset of ILOG
Views, the Company's customers can rapidly take advantage of it even if their
application does not involve a database. ILOG Data Sources' innovation allows
easy definition of the tables and views needed in a client server application.
Instead of requiring SQL code manipulation, ILOG InForm Data Sources' GUI allows
more rapid selection of the rows and columns to be accessed. Once Data Sources
are set up, ILOG InForm's Data-Aware gadgets (e.g., spreadsheets, selection
buttons, data-entry fields) automatically connect to the relevant database
records for read or write access. This combination of features allows ILOG
Views' users to accelerate application development and customization whether the
user needs to work with relational or non-relational data.
ILOG Vision is a new library for high-performance 3D structured graphics
that can be used as a companion library to ILOG Views for very advanced graphics
applications. ILOG Vision provides a comprehensive set of high-level graphic
services (e.g., lighting, shading, object behaviors, animation) that facilitate
the development of 3D applications. Developers can save significant effort by
using ILOG Vision's high-level application programming interface ("API") instead
of the basic OpenGL or Direct3D libraries that are part of the platform
operating system.
Resource Optimization Libraries
The Company currently markets five resource optimization libraries.
The ILOG Rules reactive-optimization library facilitates the
construction of intelligent agents for monitoring and controlling data flows in
real time. With ILOG Rules dynamic rules engine, these agents will monitor and
evaluate highly complex conditions. For example, used as filtering elements in
complex network monitoring applications, ILOG Rules can identify the important
data contained in a series of alerts. When very high-performance correlation and
evaluation of data trends are critical for quick reactions, ILOG Rules can
provide decision agents that respond more rapidly than humans. ILOG Rules agents
can also be used as intelligent advisors embedded within editors and graphics
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systems or provide real-time simulation of events and processes. ILOG has
recently upgraded ILOG Rules to accept new rules without recompilation. The
Company licensed ILOG Rules from a third party and pays a small per-unit royalty
to such third party when it licenses ILOG Rules.
The ILOG Solver constraint-programming library provides the basic
programming layer embedding the core constraint processing technology, and the
ILOG Scheduler and ILOG Planner libraries are vertical add-ons. ILOG Solver
provides developers with an off-the-shelf engine for finding solutions in
extremely large search spaces. Some types of industrial and operational
problems, such as short-term scheduling (e.g., MRP) or distributed resource
planning, have numerous possible answers that represent poor-quality solutions.
Finding a high-quality solution was impractical until the advent of
constraint-based reasoning. ILOG Solver provides a problem-definition and
nonlinear modeling system that allows for accurate characterization of
real-world problems. ILOG Solver's solution algorithms (constraint propagation,
branch-and-bound, and numerical and logical processing) can then be used by
programmers to solve these difficult problems in telecommunications, defense,
transportation, manufacturing, finance and other industries.
The ILOG Scheduler time-constraint library utilizes the ILOG Solver
engine to solve complex scheduling problems quickly. ILOG Scheduler integrates
algorithms specific to scheduling and predefines a set of classes that model
scheduling activities. Constraints specific to scheduling define the different
ways to link activities and resources; an activity may either produce or consume
a resource. Furthermore, a typology of resources is defined that allows a direct
representation of domain specific data, freeing the developer from the difficult
task of analyzing the scheduling activity. ILOG Scheduler gives the developer a
pre-defined object oriented model that may be easily extended to suit
application specific needs. ILOG Scheduler also adds an "edge finder" algorithm
that improves the speed of finding solutions. By extending ILOG Solver
algorithms and supplying templates for common scheduling problems (e.g.,
bottlenecks, conflicts and sequencing preferences), ILOG Scheduler further
reduces the application development effort for programmers in a number of
application domains. ILOG Scheduler has been used for resource allocation,
personnel rostering, maintenance scheduling, labor-cost optimization and other
finite-capacity problems in utilities, transportation, medical and manufacturing
companies.
The ILOG Planner linear-programming library also complements ILOG
Solver. ILOG Planner provides a number of new mathematical algorithms for
solving ranges of problems that ILOG Solver is not designed to address,
including the Simplex algorithm for optimizing continuous-process manufacturing
plants. ILOG Planner allows for optimal long-term mixes of resources for
factories, refineries, warehouses and other logistical systems. However, when
there are temporal constraints that interfere with the ideal resource mix, ILOG
Planner and ILOG Scheduler together can identify the best short-term answer
considering the long-term objectives. The Company believes that this contingent
or reactive scheduling offers operational benefits that are unavailable from any
other C++ library vendor.
The ILOG CPLEX Callable Library provides a comprehensive set of linear
programming C routines for integration with Solver and other application
development components. These algorithms solve large and difficult linear
programs, mixed integer programs, quadratic programs and network problems at a
very high level of speed performance.
Data Services Libraries
The Company currently markets three data services libraries.
The ILOG DB-Link database access library provides portable
high-performance access to popular relational database management systems
("RDBSs") from vendors such as Oracle, Informix and Microsoft. Working entirely
in C++, developers can read, write, update and delete data via SQL actions.
Unlike competing products, ILOG DB-Link allows the invocation of stored
procedures, providing remote procedure-call capabilities with popular database
server engines. ILOG DB-Link has been enhanced to support ODBC connectivity to
most standard database systems.
The ILOG Server integration library facilitates object computing by
providing a real-time event-notification system and a coordinated facility for
modeling multiple business views of underlying objects. ILOG Server provides the
cornerstone for coordinating advanced object applications, with in-memory
referential integrity for data and business objects. ILOG Server has recently
been upgraded with full multithreading support, which provides high performance
while minimizing latency in complex software systems.
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<PAGE> 11
The ILOG Broker distributed computing library provides an easy-to-use
technique to distribute application objects among multiple computers. Working
entirely in C++, developers using ILOG Broker benefit from multi-system
processing without the overhead and extra language burden of Interface
Definition Language (IDL) statements. ILOG Broker is currently being upgraded to
provide CORBA compatibility via a gateway to Iona's ORBIX system of cross-
platform object request brokers ("ORBs").
SERVICES
ILOG provides a number of services to assist customers in the design,
development and deployment of their object oriented software implementations.
Consulting services are available for designing, analyzing, implementing and
optimizing applications. In addition, the Company provides custom development
services to customers that request unique or proprietary product extensions.
Depending on the nature, complexity and duration of the project, these services
may be performed by third-party integrators, consultants or the Company.
Training is offered on a regular basis for customers needing to accelerate their
mastery of ILOG technologies and interfaces. Maintenance and technical support
are available for all ILOG libraries at an annual fee of 15% of the standard
software list price.
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<PAGE> 12
CUSTOMERS AND APPLICATIONS
As of August 31, 1997, ILOG libraries had been licensed by over 1500
customers for development and/or deployment in a wide range of applications.
Many of these customers have licensed multiple copies for use in different
applications. The Company believes that the following customers are
representative of its customer base, in terms of their industries and types of
applications. Each has licensed at least $30,000 of libraries from the Company
and has a current maintenance agreement with the Company.
<TABLE>
<S> <C> <C>
TELECOMMUNICATIONS AEROSPACE AND DEFENSE TRANSPORTATION
Alcatel British Aerospace Aviaco
Ascom Ericsson Ceselsa Airports of Paris
AT&T Dassault Aviation Air France
BBC World Service Data Sciences British Airways
Cisco Systems Defense Ministry, Singapore Civil Aviation Authority of
Ericsson DGA Singapore
Evolving Systems Defense Research Agency Federal Aviation Administration
France Telecom EDS Defence Federal Express
Fujitsu Telecommunications European Space Agency French Aviation Authorities
Hewlett-Packard French Navy Hactal (Hong Kong)
Matra Communication Gist Industries Hong Kong Kai Tak Airport
Motorola Lockheed Martin GEC Alsthom
MCI Logica MTRC
Next Level Communications Royal Air Force Port Klang (Malaysia)
Nortel Technologies Sagem Port of Singapore Authority
Nynex Sandia National Labs RATP/Paris Transportation
NTT Sextant Avionique System
Siemens Nixdorf Syseca Sabre Decision Technologies
SITA Thomson-CFS TNO SNCF/French State Railway
Teledanmark Research TRW United Parcel Service
Telefonica Techno-Sciences
UB Networks Vega Group ENERGY AND PUBLIC UTILITIES
Vodafone Group
FINANCE Aguas de Reus
MANUFACTURING CEA
Bear, Stearns Cogema
British Steel Central Bank of Russia Electra de Viesgo
Cheasapeake Commerz Financial Products Electricite de France
CSIRO Manufacturing Tech. Cursitor Management Framatome
Mannesman Societe Generale Gaz de France
Michelin Joint Research Center Ispra
Odense Steel Shipyard Long Island Lighting Company
Optichrome Petrosystems
Peugeot Technicatome
Tencor Instruments Union Fenosa
Uncle Ben's Westinghouse
Whirlpool
</TABLE>
In any given quarter, a relatively small number of customers may
constitute a significant percentage of the Company's total revenue. See
"Management's Discussion and Analysis of Consolidated Financial Condition and
Results of Operations."
The customers listed above, and others, have licensed ILOG libraries for
development of a wide range of applications, including but not limited to the
following:
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<PAGE> 13
<TABLE>
<S> <C> <C>
TELECOMMUNICATIONS AEROSPACE AND DEFENSE TRANSPORTATION
Network and Systems Management Command, Control, Communications Resource Optimization
- Accounting management and Intelligence (C3I) systems - Airport counter, gate and belt
- Configuration management - Data fusion allocation
- Fault management - Geographic information systems - Command and control
- Performance management - Image processing - Crew allocation
- Security management - Logistics mapping - Distribution planning
- Equipment scheduling
Service Management Process Monitoring - Fleet management
- Dynamic tariff policy management - Data flow monitoring - Geographic information systems
- On-demand service provisioning - Radar visualization - Maintenance planning and
- Test bench monitoring scheduling
Network Planning - Timetabling
- Ground and space equipment Simulation - Traffic monitoring
scheduling - Capability analysis - Traffic planning
- Network modeling - Flight simulators - Vehicle tracking systems
- Scenario analysis - Warehouse management
Enterprise Resource Planning
- Maintenance scheduling Resource Allocation and Optimization
- Manpower planning - Frequency and bandwidth
allocation
- Mission planning
- On-board resource scheduling
- Payload optimization
- Supply chain logistics
MANUFACTURING FINANCE ENERGY AND PUBLIC UTILITIES
Supervision and Data Visualization Trading Systems Supervision, Command and Control
- Equipment performance analysis - Financial data visualization - Electrical network monitoring
- Geographic information systems - Portfolio management - Electrical powerplant monitoring
- Process monitoring and control - Portfolio optimization - Procedures monitoring
- Quality analysis - Risk analysis - Water and gas network
- Transaction management monitoring
Resource Optimization
- Equipment configuration and Commercial Banking Analysis and Tests
diagnostics - Balance sheet analysis - Measuring systems
- Logistics and distribution - Credit allocation management - Seismic data analysis
planning - Home banking applications - Simulation tools
- Maintenance planning and - Project management
scheduling - Staff scheduling Enterprise Resource Planning
- Manpower planning and crew - Workflow management - Equipment configuration
scheduling - Maintenance planning and
- Production line scheduling scheduling
- Production planning - Network planning
- Supply chain logistics - Nuclear plant decommissioning
- Warehouse management - Staff planning
Customer Services
- Claim resolution
- Price negotiation
</TABLE>
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<PAGE> 14
The following examples illustrate how selected organizations are
currently using ILOG's technology:
Telecommunications. France Telecom uses an application based on ILOG
Views to provide real-time intelligent monitoring of its telecommunications
network. This application was developed by an independent software integrator
and implemented as an add-on to France Telecom's existing centralized management
system, demonstrating the modularity and flexibility of ILOG C++ libraries. The
France Telecom network comprises over 650,000 circuit miles of fiber-optic cable
linking digital switches. The complexity of such a telecommunications network
and its switching equipment requires a sophisticated centralized management
center through which operators are able to react immediately to any alarms. It
is essential that superfluous data be filtered out so that only critical
information is analyzed for problems and faults. The graphical user interface
developed with ILOG Views is of paramount importance to this network management
application. It ensures instant communication of faults and alarms to the
operators and fast, intuitive network supervision. The application also provides
new on-line control and decision-support facilities for the centralized
management center. Thus equipped operators have the tools necessary to minimize
the impact of any network problem and either reroute traffic through existing
lines or open new connections. The independent software integrator achieved
these benefits by extending the ILOG Views graphing facility to create a
specialized editor to define and visualize new types of network fault patterns.
The use of ILOG View's reduced by a third the original estimated development
cost.
Transportation. The Civil Aviation Authority of Singapore uses an
application developed with ILOG Views and ILOG Solver to optimize the efficiency
of its airport operations, thus enabling higher traffic volume and better
customer service within the limitations of the existing facility. For an airport
to function well, planes must be moved to and from their gates efficiently, and
passengers must have easy access to departure and arrival terminals, luggage
belts and connecting flights. The location of aircraft on the ground must also
be carefully allocated because airport operators may want to spread passenger
loads while airlines would rather keep their fleet together to simplify
connections. The application based on ILOG Solver operates in real time,
reallocating gates and luggage belts as it receives updated flight information
and taking physical constraints, user preferences and pre-configurable criteria
into account to determine the best possible solution. When a solution that
satisfies every constraint cannot be found, the application finds one that meets
the most important constraints for as many flights as possible. Using ILOG
Solver, the allocation of an average day's 400 flights takes only six minutes.
ILOG Views' graphical layout of the airport with zoom capability gives users
total visibility over gates and luggage belts in real time, or at future times.
Color codes and symbols clearly mark allocation conflicts that might not have
been easy to visualize on a less graphically sophisticated display. The
application tries to minimize disruptions to airport operations caused by
last-minute changes that inconvenience passengers and airport staff.
Reallocating gates to handle contingencies takes less than 30 seconds including
recalculating the solution, updating the database and displaying the results in
an ILOG Views Gantt diagram. Using ILOG library technology, the Civil Aviation
Authority of Singapore saved months of development time and yielded better
results than internal solutions.
Manufacturing. Whirlpool Corporation has built an application based on
ILOG Solver to achieve a fundamental transition from "push" to "pull"
manufacturing. Under the previous "push" system, Whirlpool operated its plants
at full capacity and pushed the resulting inventory into the distribution
channel, with periodic oversupply resulting in discounting pressures. The push
system had the additional drawback of imposing weeks-long delays on any
nonstandard customer order. Whirlpool found the push model inappropriate for
supplying U.S. mass-marketers such as Circuit City and Sears. The new "pull"
system predicates manufacturing on actual customer demand, therefore requiring
both timely relay of orders to the plant and a highly optimized production
scheduling process to fill those orders. To achieve this transition, Whirlpool
had to reduce its order response time from four weeks to five days. Using ILOG
Solver, the application optimizes production planning based on pull
manufacturing constraints. Inventory at dealer showrooms is automatically
replenished when depleted by customer orders. Production costs, work-in-progress
and finished goods inventories are all significantly reduced, while
responsiveness to customer demand is much improved. The system is currently
supporting eight of Whirlpool's manufacturing plants, where it more accurately
prioritizes production, creates achievable production schedules, keeps factory
utilization high and monitors unsatisfied requirements resulting from production
constraints.
-14-
<PAGE> 15
SALES AND MARKETING
ILOG markets and sells its products worldwide principally through its
direct sales force and, to a lesser extent, through independent software vendors
("ISVs") and original equipment manufacturers ("OEMs") that embed ILOG
technologies into their own products for resale, as well as through systems
integrators, value added resellers ("VARs") and distributors.
Direct Sales. The Company has direct sales offices in France, California
and Singapore and additional field sales offices in the U.S., the U.K., Germany
and Spain. The sales organization includes field sales representatives, who bear
primary responsibility for customer relationships; field sales engineers, who
answer technical questions, perform demonstrations and develop prototypes or
proof-of-concept projects for customers; and inside sales representatives, who
support the field sales organization and handle smaller orders directly.
Due in part to the strategic nature of ILOG products and their
associated application development efforts, potential customers typically
conduct extensive evaluations of the available technologies before making
product acquisition decisions. Common objectives of such evaluations are to
determine whether a packaged application (as opposed to a component-based
development effort) exists that sufficiently meets the customer's requirements,
and to assess the degree of leverage provided by purchasing ILOG products versus
rewriting their salient features. Consequently, ILOG's sales cycle is generally
three to six months or more and varies substantially from customer to customer.
A prospective customer typically has a specific strategic need for one
or more specialized software applications to help it gain a competitive
advantage in its market, as well as adequate technical expertise and resources
in-house to support a software development effort to meet that need. During the
evaluation period, meetings involving ILOG's field sales and technical staff are
typically conducted at the customer's site and at ILOG's offices. Upon
completion of the evaluation, the customer may purchase one or more development
licenses for ILOG products, as well as associated training courses, consulting
services and product maintenance. A customer typically does not purchase any run
time licenses until the successful completion of the application development
process, which typically takes at least six months from the initial order. There
is no advance guarantee that any particular customer's application development
process will be successful and will ever yield deployment license revenues to
ILOG.
Indirect Sales. An important part of ILOG's sales strategy is the
cultivation of indirect sales channels. Of the approximately 1500 total ILOG
customers, more than 80 are ISVs or OEMs that develop and resell software based
on ILOG technologies. The Company also sells through systems integrators and
VARs, and distributors in Europe, Asia and South America. Substantially all of
the Company's indirect sales channels add significant value to the product in
the form of application development, integration with other software and/or
hardware products, consulting and/or training.
Marketing. ILOG conducts worldwide marketing communications programs
intended to position and promote its products and services. Specific promotional
tactics vary according to regional opportunities and best practice, but in
general include direct mail, advertising in technical journals, exhibition and
speaker placement at industry trade shows, press and industry analyst relations,
and horizontal (by technology) and vertical (by industry) educational seminars.
The Company also maintains Web sites that contain extensive product and Company
promotional materials as well as localized content by region.
ILOG's software is typically shipped to customers promptly upon receipt
of an order and the execution of a license agreement. Consequently, ILOG seldom
experiences a material backlog of unfulfilled orders, and does not consider
backlog to be a meaningful indicator of future performance. See "Management's
Discussion and Analysis of Consolidated Financial Condition and Results of
Operations."
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<PAGE> 16
RESEARCH AND DEVELOPMENT
The Company has committed, and expects to continue to commit in the
future, substantial resources to research and development. Research and
development efforts are focused on enhancing the performance, features and
scalability of its current libraries, porting them to different platforms and
additional programming languages and expanding the number of libraries to
address common software development needs. Current libraries under development
include a new version of ILOG Rules for Java and ILOG Dispatcher, a vertical
add-on to ILOG Solver for the transportation industry. There can be no assurance
however, that any of these products under development will ever be successfully
completed. During 1995, 1996 and 1997, net research and development expenses
were $2.9 million, $4.4 million and $4.6 million, respectively. Gross research
and development expenses before offsets to funding provided by the European
Union and agencies of the French government were $5.2 million, $7.0 million and
$5.0 million in 1995, 1996 and 1997, respectively. See "Risk Factors -- Risk of
Loss of Government Research and Development Funding" and "Management's
Discussion and Analysis of Consolidated Financial Condition and Results of
Operations."
Since its inception, the Company has maintained a research and
development focus on the solution of complex problems using object oriented
technology. This focus requires the fusion of different programming cultures,
including object oriented developers, who tend to be attracted by high-level
modeling, and developers working on complex algorithms, who tend to focus on
tight low-level code. This ILOG culture has arisen from nine years of day-to-day
development, algorithmic optimization and object oriented design. The Company's
engineers work with customers to ensure that the customer's problem is solved
efficiently. The Company's engineers also interact closely with the scientific
and academic communities, which the Company believes is the best way to obtain
and maintain high performance algorithms.
The Company's future success will depend in large part on its ability to
improve its current technologies and to acquire, develop and market new products
and product enhancements that address these changing market requirements on a
timely basis. There can be no assurance that the Company will be successful in
acquiring, developing and marketing new products or product enhancements, that
the Company will not experience difficulties that delay or prevent the
successful acquisition, development, introduction or marketing of such products
or enhancements or that any new products or product enhancements will adequately
address market requirements and achieve market acceptance. As is customary in
the software industry, the Company has in the past experienced delays in the
introduction of new products and features, and may experience such delays in the
future. If the Company is unable, for technological or other reasons, to
integrate acquired products, develop new products or enhancements of existing
products in a timely manner in response to changing market conditions or
customer requirements, the Company's business, operating results and financial
condition would be materially adversely affected. See "Risk Factors -- Rapid
Technological Change and Introduction of New Products and Product Enhancements."
COMPETITION
The Company believes that the primary competitive factors in its markets
are product performance and features, sales and distribution capabilities and
total cost. The Company's present direct competitors include a number of private
and public companies such as Dynatech Corporation, IBM, Neuron Data, Inc., Rogue
Wave Software, Inc., SL Corporation, Template Software, Inc. and Visix Software
Inc. The Company also competes with companies that provide packaged software
with respect to specific applications. In addition, virtually all of the
Company's customers have significant investments in their existing solutions and
have the resources necessary to enhance existing products and to develop future
products. These customers have or may develop and incorporate competing
technologies into their systems, thereby replacing the Company's current or
proposed libraries. This would eliminate their need for the Company's services
and libraries and limit future opportunities for the Company. The Company
therefore is required to persuade development personnel within these customers'
organizations to outsource the development of their software and to provide
products and solutions to these customers that cost-effectively compete with
their internally developed products. The Company expects to face additional
competition from other established and emerging companies if the market for its
libraries continues to develop and expand. In addition, current and potential
competitors have established or may establish cooperative relationships among
themselves or with third parties to increase the ability of their products to
address the needs of the Company's current and prospective customers.
Accordingly, it is possible that new competitors or alliances among competitors
may emerge and rapidly gain significant market share. New or enhanced
-16-
<PAGE> 17
products introduced by existing or future competitors could increase the
competition faced by the Company's products. Increased competition could result
in fewer customer orders, price reductions, reduced transaction size, reduced
gross margins and loss of market share, any of which could have a material
adverse effect on the Company's business, operating results and financial
condition. There can be no assurance that the Company will be able to maintain
prices for its products at levels that will enable the Company to market its
products profitably. Any decrease in prices, as a result of competition or
otherwise, could have a material adverse effect on the Company's business,
operating results and financial condition.
Some of the Company's current, and many of the Company's potential,
competitors have longer operating histories, significantly greater financial,
technical, marketing, service and other resources, significantly greater name
recognition, broader product offerings and a larger installed base of customers
than the Company. In addition, the Company's current and potential competitors
may have well-established relationships with current and potential customers of
the Company. As a result, such competitors may be able to devote greater
resources to the development, promotion and sale of their products, may have
more direct access to corporate decision-makers based on previous relationships
and may be able to respond more quickly to new or emerging technologies and
changes in customer requirements. There can be no assurance that the Company
will be able to compete successfully against current or future competitors or
that competitive pressures will not have a material adverse effect on its
business, operating results and financial condition.
INTELLECTUAL PROPERTY AND OTHER PROPRIETARY RIGHTS
The Company relies primarily on a combination of copyright and trademark
laws, trade secrets, confidentiality procedures and contractual provisions to
protect its proprietary technology. For example, the Company licenses its
software pursuant to signed license agreements and, to a lesser extent,
"shrink-wrap" licenses displayed in product packaging, which impose certain
restrictions on the licensee's ability to use the software. In addition, the
Company seeks to avoid disclosure of its trade secrets, including requiring
those persons with access to the Company's proprietary information to execute
confidentiality agreements with the Company and restricting access to the
Company's source codes. The Company seeks to protect its software, documentation
and other written materials under the laws relating to trade secrets and
copyright, which afford only limited protection. The Company has no patents or
pending patent applications.
Despite the Company's efforts to protect its proprietary rights,
unauthorized parties may attempt to copy aspects of the Company's products,
obtain or use information that the Company regards as proprietary or use or make
copies of the Company's products. Policing unauthorized use of the Company's
products is difficult. In addition, the laws of many jurisdictions do not
protect the Company's proprietary rights to as great an extent as do the laws of
France and the U.S. In particular, "shrink-wrap" licenses may be wholly or
partially unenforceable under the laws of certain jurisdictions, and copyright
and trade secret protection for software may be unavailable in certain
countries. Under French intellectual property laws, rights over software are not
patentable but are protected under copyright law and infringements by third
parties can be enjoined. There can be no assurance that the Company's means of
protecting its proprietary rights will be adequate or that the Company's
competitors will not independently develop similar technology.
There can be no assurance that the Company will not receive
communications in the future from third parties asserting that the Company's
products infringe, or may infringe, on their proprietary rights. There can be no
assurance that licenses to disputed third-party technology would be available on
reasonable commercial terms, if at all. In addition, the Company may initiate
claims or litigation against third parties for infringement of the Company's
proprietary rights or to establish the validity of the Company's proprietary
rights. Litigation to determine the validity of any claims could result in
significant expense to the Company and divert the efforts of the Company's
technical and management personnel from productive tasks, whether or not such
litigation were determined in favor of the Company. In the event of an adverse
ruling in any such litigation, the Company might be required to pay substantial
damages, discontinue the use and sale of infringing products, expend significant
resources to develop non-infringing technology or obtain licenses to infringing
technology. In the event of a successful claim against the Company and the
failure of the Company to develop or license a substitute technology, the
Company's business, operating results and financial condition would be
materially adversely affected. As the number of software products in the
industry increases and the functionality of these products further overlaps, the
Company believes that software developers may become increasingly subject to
infringement claims.
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<PAGE> 18
Any such claims against the Company, with or without merit, as well as claims
initiated by the Company against third parties, could be time consuming and
expensive to defend or prosecute and to resolve.
EMPLOYEES
As of August 31, 1997, the Company had 299 full-time employees,
including 58 in research and development, 203 in sales and marketing, consulting
and customer support and 38 in finance and administration. As of August 31,
1997, 187 of the Company's employees were located in Europe, 80 were located in
North America and 32 were located in Asia.
The Company has never experienced a work stoppage and believes that its
relationships with its employees are good. The future success of the Company
depends in large part on its ability to attract and retain highly skilled
technical, sales and managerial personnel. Competition for such personnel in the
software industry is intense, particularly with respect to technical personnel
with expertise in object oriented technology, and there can be no assurance that
the Company will be successful in attracting and retaining such personnel.
Management is required under the French Labor Code to hold monthly
meetings with a delegation of elected employee representatives to discuss, in
particular, employment matters and the economic condition of the Company and to
provide appropriate information and documents relating thereto. As required
under the French Labor Code, two representatives of the employees are entitled
to attend meetings of the Board of Directors of the Company, but do not have any
voting rights.
ITEM 2. DESCRIPTION OF PROPERTY
The Company's corporate headquarters are located in Gentilly, France, a
suburb of Paris, in premises consisting of approximately 36,000 square feet
under a lease expiring in 2004. The Company maintains a research and development
facility in Sophia-Antipolis, in the south of France, in premises consisting of
approximately 2,300 square feet under a lease expiring in 2005. The Company has
its U.S. headquarters in Mountain View, California in premises consisting of
approximately 14,000 square feet under a lease expiring in 1999. The Company
maintains a research and development facility in Incline Village, Nevada, in
premises consisting of approximately 3,100 square feet under a lease expiring in
September 1997, the renewal of which is currently being negotiated and a sales
office in Cambridge, Massachusetts. The Company has its Asian headquarters in
Singapore in premises consisting of approximately 6,500 square feet under a
number of leases expiring through 1999. In addition, the Company maintains sales
and customer support offices in Bracknell, outside of London, England; in
Eschborn, outside of Frankfurt, Germany; in Madrid, Spain; and Tokyo, Japan.
ITEM 3. LEGAL PROCEEDINGS
The Company is a party to legal proceedings from time to time. There is
no such proceeding currently pending which the Company believes is likely to
have a material adverse effect upon the Company's business. Any litigation,
however, involves potential risk and potentially significant litigation costs,
and therefore there can be no assurance that any litigation which may arise in
the future will not have a material adverse effect on the Company's business.
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<PAGE> 19
ITEM 4. CONTROL OF REGISTRANT
To the Company's knowledge, it is not owned or controlled by another
corporation or by any foreign government.
The table below sets forth certain information with respect to the
beneficial ownership of shares of the Company as of August 31, 1997 by any
person known to the Company to be the owner of more than ten percent of the
Shares:
<TABLE>
<CAPTION>
SHARES
BENEFICIALLY PERCENTAGE
NAME AND ADDRESS OF BENEFICIAL OWNER OWNED(1) OWNED
------------------------------------ --------- -----
<S> <C> <C>
INRIA.............................................. 2,212,250 17.30%
BP 105, 78153 Le Chesnay Cedex,
France
Oak Investment Partners (2)........................ 1,379,107 10.79%
525 University Avenue, Suite 1300
Palo Alto, CA 94301
All directors and executive officers
as a group ((13) persons) (3)................... 6,073,633 47.01%
</TABLE>
- -----------------------------
(1) Number of Shares and percent ownership is based on: (i) 12,786,730 Shares
outstanding as of August 31, 1997. Beneficial ownership is determined in
accordance with the rules of the U.S. Securities and Exchange Commission and
includes voting and investment power with respect to such shares. Shares
subject to options that are currently exercisable or exercisable within 60
days of August 31, 1997 are deemed to be outstanding and to be beneficially
owned by the person holding such options for the purpose of computing the
percentage ownership of such person, but are not deemed to be outstanding
and to be beneficially owned for the purpose of computing the percentage
ownership of any other person.
(2) Represents 24,261 Shares and 1,354,846 Shares held of record by Oak VI
Affiliates Fund, L.P. and Oak Investment Partners VI, L.P. respectively. Oak
VI Affiliates Fund is an affiliate of Oak Investment Partners, a venture
capital firm. Fredric Harman, a director of the Company, is a general
partner of Oak Investment Partners. No general partner of Oak Investment
Partners is deemed to have voting and investment power with respect to such
Shares.
(3) Includes 133,577 shares issuable upon exercise of options to purchase shares
granted to executive officers and directors of the Company which are
exercisable within 60 days of August 31, 1997.
ITEM 5. NATURE OF TRADING MARKET
The ADSs are quoted on the Nasdaq National Market under the symbol
"ILOGY". Neither the ADSs nor the Shares are listed or quoted on any other
quotation system or securities exchange. The following table sets forth the
range of quarterly high and low closing sale prices of the ADSs (each ADS
representing one Share) on the Nasdaq National Market for each full quarterly
period within the last fiscal year.
<TABLE>
<CAPTION>
HIGH LOW
------- ------
<S> <C> <C>
1997:
Third Quarter $12 1/4 $7 1/4
Fourth Quarter $ 6 1/4 $2 1/2
</TABLE>
On August 31, 1997, the last sale price for the ADSs as reported on the
Nasdaq National Market was $8 1/2per ADS.
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<PAGE> 20
The Depositary in respect of the ADSs is Morgan Guaranty Trust Company
of New York. Each ADS registered on the books of the Depositary corresponds to
one Share. As of August 31, 1997 there were 10 record holders of American
Depositary Receipts evidencing 4,733,074 ADSs. As of August 31, 1997 there were
141 holders of record of the Company's 12,786,730 Shares.
ITEM 6. EXCHANGE CONTROLS AND OTHER LIMITATIONS AFFECTING SECURITY HOLDERS
EXCHANGE CONTROLS
The payment of any dividends to foreign shareholders must be effected
through an authorized intermediary bank. All registered banks and credit
establishments in The Republic of France are authorized intermediaries.
Under current French exchange control regulations, there are no
limitations on the amount of cash payments that may be remitted by ILOG to
residents of the United States. Laws and regulations concerning foreign exchange
controls do require, however, that all payments or transfers of funds made by a
French resident to a non-resident be handled by an authorized intermediary bank.
OWNERSHIP OF SHARES BY NON-EUROPEAN UNION PERSONS
Pursuant to a Decree dated February 14, 1996, the acquisition of a
controlling interest in ILOG by any Non- European Union ("EU") resident is
generally no longer subject to an autorisation prealable or prior authorization
of the French Ministry of the Economy, Finance and the Budget. Under the new
regulations, the acquisition of a controlling interest in ILOG by either an EU
or non-EU person or group of persons is subject to a simple declaration
containing the details of the acquisition. The declaration must be filed at the
time the investment is made. Direct and indirect ownership of 20% or more of a
quoted company is generally regarded as a controlling interest, but a lower
interest may be held to be a controlling interest in certain circumstances (such
as an option to purchase additional shares).
Under French law, there is no limitation on the right of non-resident or
foreign shareholders to vote securities of a French company.
ITEM 7. TAXATION
The following is a general summary of certain material French tax and
United States federal income tax consequences to certain holders of ADSs that
are U.S. citizens and residents, U.S. corporations, and certain other entities
and organizations potentially affected by U.S. Federal income taxation
(collectively, "US. Holders"). This summary does not purport to address all of
the material consequences to these U.S. Holders or to any other holders. This
summary also does not take into account the specific circumstances of any
particular U.S. Holder although such circumstances might materially affect the
general tax treatment of such U.S. Holder. Therefore, all prospective purchasers
of ADSs are advised to consult their own tax advisor with respect to the United
States federal, state and local tax consequences, French tax consequences, or
foreign tax consequences of the ownership of ADSs and the Shares corresponding
thereto.
The statements of French and United States tax laws set out below assume
that each obligation in the Deposit Agreement and any related agreement will be
performed in accordance with its terms. In addition, such statements are based
on the laws in force as of the date of this Annual Report on Form 20-F, and as a
consequence are subject to any changes in United States or French law, or in the
double taxation conventions between the United States and France, occurring
after such date.
The Convention between the Government of the United States of America
and the Government of the French Republic for the Avoidance of Double Taxation
and the Prevention of Fiscal Evasion with Respect to Taxes on Income and Capital
of August 31, 1994 (the "Treaty") was ratified on December 30, 1995. Its
provisions concerning withholding taxes on dividends are applicable to amounts
paid on or after February 1, 1996. Its provisions for the partial refund of the
avoir fiscal (a 50% tax credit attached to French-source dividends) to
tax-exempt entities are retroactive and are
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<PAGE> 21
effective for dividends paid on or after January 1, 1991. With respect to any
other taxes on income or with respect to the French wealth tax, the provisions
of the Treaty are effective January 1, 1996. Investors having questions
regarding the treatment of any item under the double taxation convention in
force between the United States of America and the French Republic prior to the
Treaty should consult with their tax advisors.
In order to be entitled to benefits conferred by the Treaty, a U.S.
holder must be a "resident" of the United States (hereafter referred to as a
"U.S. Resident Holder") within the meaning of the Treaty. Included in the
category of "U.S. Resident Holders" would generally be: (i) citizens or
residents of the United States; (ii) corporations organized under the laws of
the United States, or of any State thereof; (iii) certain pension trusts and
other retirement or employee benefits organizations established in the United
States by a "resident" thereof but generally exempt from U.S. tax; (iv) certain
not-for-profit organizations established in the U.S. but generally exempt from
U.S. tax; (v) U.S. regulated investment companies, U.S. real estate investment
trusts, and U.S. real estate mortgage conduits; and (vi) partnerships or similar
pass-through entities, estates, and trusts to the extent the income of such
partnerships, similar entities, estates, or trusts is subject to tax in the
United States as income of a resident in its hands or the hands of its partners,
beneficiaries, or grantors. In addition, in order to be entitled to benefits
conferred by the Treaty, a U.S. Resident Holder must also qualify for such
benefits under the limitation on benefits provisions of Article 30 of the
Treaty. The discussion below is based on the assumption that a U.S. Resident
Holder would so qualify but each U.S. Holder should consult with their own
advisor to ensure that this is the case.
For most purposes of the Treaty and the United States Internal Revenue
Code of 1986, as amended (the "IRC") as in effect as of the date of this Annual
Report on Form 20-F, U.S. Holders of ADSs will be treated as the owners of the
Shares corresponding to such ADSs. Accordingly, the French and United States
federal tax consequences discussed below will generally be applicable to U.S.
Holders of Shares.
TAXATION OF DIVIDENDS
Under French law, dividends paid to non-residents of France are subject
to French withholding tax at a rate of 25%. A resident of France is entitled to
an avoir fiscal, or a tax credit, in respect of a dividend received from a
French corporation, such as ILOG, equal to 50% of the amount of the dividend.
The avoir fiscal is allowed to shareholders who are not residents of France only
pursuant to a treaty or similar agreement between France and such non-resident's
country of residence.
Assuming dividends paid to a U.S. Resident Holder are not attributable
to a permanent establishment or fixed base maintained by such holder in France,
under the Treaty, the rate of French withholding tax on such dividends is
generally reduced to 15%. The rate of French withholding tax may be further
reduced to 5% if the U.S. Resident Holder is a company that owns directly or
indirectly at least 10% of the capital of ILOG.
The French tax authorities established an instruction on June 7, 1994
(the "Instruction") providing that dividends paid to a U.S. Resident Holder
which is entitled to either a fall or partial refund of avoir fiscal as
described below will no longer be subject to the French withholding tax of 25%
(with this tax reduced at a later date to 15% subject to filing formalities),
but will be immediately subject to the reduced rate of 15% provided that such
U.S. Resident Holder establishes before the date of payment that he is a
"resident" of the United States under the Treaty.
In addition, assuming again that dividends are not attributable to a
permanent establishment or fixed base maintained in France, certain U.S.
Resident Holders described below are also entitled to a payment equal to the
avoir fiscal, less a 15% withholding tax, with respect to such dividends. These
U.S. Resident Holders are: (i) individuals or other non-corporate persons; (ii)
United States corporations, other than regulated investment companies, that do
not directly or indirectly own 10% or more of the capital of ILOG; and (iii)
regulated investment companies that do not directly or indirectly own 10% or
more of the capital of ILOG but only if less than 20% of their shares are
beneficially owned by persons who are not citizens or residents of the United
States. It is important to note that a U.S. Resident Holder described
immediately above may receive a payment of the avoir fiscal only if such holder
is subject to United States federal income tax on the payment of the avoir
fiscal and the related dividend. Nevertheless, a partnership or trust may also
qualify but only to the extent that the partners, beneficiaries, or grantors
would qualify under (i) or (ii) immediately above (and are subject to United
States federal income tax on the payment of the avoir fiscal and the
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<PAGE> 22
related dividend). In addition, in order to receive payment of the avoir fiscal,
the U.S. Resident Holder may be required to demonstrate to the French
authorities that he is the beneficial owner of the dividend and that his
shareholding does not have as its principal purpose, or one of its principal
purposes, to allow another person to obtain the refund of avoir fiscal.
Under the Treaty, any payment of the avoir fiscal (whether full or
partial) is subject to a 15% withholding tax. Thus, for example, provided that
the requirements of the Instruction are satisfied, if ILOG pays a dividend of
100 to a U.S. Resident Holder (who is not a tax- exempt entity) entitled to a
refund of avoir fiscal, such holder will initially receive 85 and will be
entitled to an additional payment of 42.5 (resulting in an aggregate payment of
127.5) consisting of the avoir fiscal of 50, less a 15% withholding tax on that
amount equal to 7.50. As noted below, the payment of the avoir fiscal less a 15%
withholding tax on that amount will not be received until, at the earliest,
January 15th following the close of the calendar year in which the dividend was
paid.
The Treaty provides that certain tax-exempt U.S. pension trusts and
other organizations established and maintained to provide retirement or employee
benefits and certain tax-exempt not-for-profit organizations (as well as certain
individuals with respect to dividends beneficially owned by such individuals and
derived from an investment retirement account and the United States, its
political subdivisions or local authorities, and any agencies or
instrumentalities thereof, from the investment of retirement assets) which are
U.S. Resident Holders are entitled to receive a payment equal to 30/85 of the
avoir fiscal, less a 15% withholding tax, provided that these entities own,
directly or indirectly, less than 10% of the capital of ILOG. The net effect of
the partial refund of the avoir fiscal is to offset the economic effect of the
15% French withholding tax imposed on the gross amount of the dividend.
Under the Instruction, in order to benefit from the reduced withholding
tax rate of 15% immediately upon payment of a dividend and to receive, where
applicable, the payment of the avoir fiscal less the 15% withholding tax on that
amount, a U.S. Resident Holder must complete and file a French Treasury form RF
IA EU-No. 5052, entitled "Application for Refund", before the date of payment of
the dividends. The form, together with instructions, will be provided by the
Depositary to all U.S. Holders registered with the Depositary and may also be
available from the United States Internal Revenue Service (the "Service").
However, should a U.S. Resident Holder not be able to complete and file the
French Treasury form RF IA EU-No. 5052 on the date of payment of the dividends
at the latest, such U.S. Resident Holder could benefit from the favorable
treatment provided by the Treaty if he or she completes and files a simplified
application form before the date of payment of the dividends. A model of such
simplified application form is provided by the Instruction. The Depositary will
arrange for the filing with the French fiscal authorities of all forms completed
by U.S. Holders registered with the Depositary and returned to the Depositary in
time to be filed with the French fiscal authorities prior to the payment of the
dividend. The payment of the avoir fiscal (net of withholding tax) is not made
before the close of the calendar year in which the related dividend is paid.
In addition, U.S. pension funds must, inter alia, provide the Centre des
Impots des Non-Residents with a tax certificate from the Service indicating that
such pension funds have been established and are operated in accordance with
Sections 401(a), 403(b) or 457 of the IRC. A mutual fund or other investment
company must provide a certification by the Service of such Company's status as
a regulated investment company under Section 851 of the IRC.
Amounts distributed as dividends by French companies out of profits
which have not been taxed at the ordinary corporate income tax rate or which
have been earned and taxed more than five years before the distribution are
subject to a precompte or prepayment by such companies equal to one-half of the
net amount distributed. If a U.S. Resident Holder is not entitled to the avoir
fiscal payment described above (or is entitled to only a partial payment of the
avoir fiscal), such a holder generally may obtain from the French tax
authorities a refund precompte (or a partial refund of precompte in the case of
a partial payment of the avoir fiscal), if any, paid in respect of the dividends
less French withholding tax on the amount thereof for United States federal
income tax purposes, the gross amount of any distribution as well as the gross
amount of any avoir fiscal (or precompte) paid to a U.S. Resident Holder (before
reduction for French withholding taxes) will generally be treated as a dividend
to the extent paid or deemed paid out of the current or accumulated earnings and
profits of ILOG (as determined for United States tax purposes) and will be
included in gross income of the U.S. Holder as ordinary income in the year
actually or constructively received. A dividends received deduction will
generally not be allowed with respect to dividends paid by the Company. For
purposes of determining the amount included in gross income, any French franc
distribution or avoir fiscal payment (or precompte refund) will
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<PAGE> 23
be converted to U.S. dollars at the spot exchange rate on the date so included.
Generally, gain or loss (if any) resulting from currency exchange fluctuations
during the period from the date the dividend is included in income to the date
such dividend payment is actually converted into U.S. dollars will be treated as
ordinary income or loss from sources within the United States.
French withholding tax imposed on dividends paid by ILOG and imposed on
related payments of avoir fiscal (or precompte) may, subject to certain
generally applicable conditions and limitations, be taken as a deduction or as a
foreign tax credit against such U.S. Holder's United States federal income tax
liability. Dividends and related payments of avoir fiscal (or precompte) will,
in most cases, be considered "passive income" from sources outside of the United
States for purposes of these U.S. foreign tax credit provisions.
The passive foreign investment company ("PFIC") rules discussed below
may affect the U.S. tax treatment of distributions from ILOG.
TAXATION OF CAPITAL GAINS
In general, a U.S. Resident Holder will not be subject to French tax on
any capital gain derived from the sale or exchange of ADSs, except where such
gain is attributable to a permanent establishment or fixed base maintained by
the U.S. Resident Holder in France.
For U.S. tax purposes, U.S. Holders will generally recognize gain or
loss upon the sale or exchange of ADSs equal to the difference between the
amount realized from the sale or exchange of the ADSs and the U.S. Holder's
basis in such ADSs. In general, such gain will be capital gain from sources
within the United States and, furthermore, will be long-term capital gain if the
U.S. Holder has held the ADSs for more than 12 months at the time of
disposition. On August 5, 1997, legislation was enacted which, among other
things, reduces to 20% the maximum rate of tax on long-term capital gains on
most capital assets held by an individual for more than 18 months, and under
which gain on most capital assets held by an individual for more than one year
and up to 18 months is subject to tax at a maximum rate of 28%.
However, application of the PFIC rules discussed below may affect the
U.S. tax treatment of gain derived by a U.S. Holder from the disposition of
ADSs.
FRENCH TRANSFER TAXES
Transfers of Shares will not be subject to French registration or
transfer taxes, unless the transfer is effected by means of a written agreement
that is executed, registered, or enforced within France.
FRENCH ESTATE AND GIFT TAXES
Under the Convention Between the United States of America and the French
Republic for the Avoidance of Double Taxation and the Prevention of Fiscal
Evasion with Respect to Taxes on Estates, Inheritance and Gifts, a transfer of
ADSs by gift or by reason of the death of a U.S. Holder that is an individual
that would otherwise be subject to French gift or inheritance tax, respectively,
will not be subject to such French tax unless the donor or the transferor is
domiciled in France at the time of making the gift, or of his or her death, or
the ADSs were used in, or held for use in, the conduct of a business through a
permanent establishment in France.
FRENCH WEALTH TAX
Under the Treaty, the French wealth tax applicable to individuals does
not apply to U.S. Holders owning alone or with related persons, directly or
indirectly, ADSs giving the right to less than 25% of ILOG's share capital.
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<PAGE> 24
PASSIVE FOREIGN INVESTMENT COMPANY PROVISIONS
ILOG believes that its ADSs should not be treated as stock of a passive
foreign investment company (a "PFIC") for United States federal income tax
purposes, but this conclusion is a factual determination made annually and thus
is subject to change.
In particular, because all or a portion of the proceeds of an offering
of ADSs or Shares might be considered to generate "passive" income or be
considered to be "passive" assets as determined for PFIC purposes, ILOG might be
a PFIC in the taxable year in which any offering is consummated or in a
subsequent taxable year.
ILOG will be a PFIC with respect to a U.S. Holder if, for any taxable
year in which the U.S. Holder holds ADSs, either (i) at least 75% of the gross
income of ILOG for the taxable year is passive income; or (ii) at least 50% of
the average fair market value (assuming ILOG is not a "controlled foreign
corporation"as defined under U.S. law) of ILOG's assets consists of assets that
produce or are held for the production of passive income. For this purpose,
passive income generally includes dividends, interest, royalties, rents (other
than rents and royalties derived in the active conduct of a trade or business
and not derived from a related person), annuities and gains from assets that
produce passive income. For the purpose of the PFIC tests, ILOG will be treated
as owning directly its percentage share (presently 100%) of the assets of its
subsidiaries and of receiving directly its percentage share of each of those
subsidiaries' income, if any, so long as ILOG owns, directly or indirectly, at
least 25% by value of the particular subsidiary's stock.
If ILOG is treated as a PFIC, unless a U.S. Holder makes a "QEF
election", as described below, any gain realized on the disposition of ADSs as
well as any distributions with respect to such ADSs which constitutes an "excess
distribution" (defined as the excess of the amount received with respect to ADSs
in any taxable year over 125 percent of the average received during the shorter
of the three prior years or the prior years during which the U.S. Holder held
the ADSs) will be taxed in the following manner. First, the gain or excess
distribution will be allocated ratably over the period during which the U.S.
Holder held the ADSs. Second, the gain or excess distribution so allocated to
the current year or to any prior year during which ILOG was a PFIC will be
included in the current year as ordinary income (rather than, for example, as
capital gain). Third, gain or excess distribution allocated to any prior year
during which ILOG was a PFIC will be subject to tax at the highest rate of tax
applicable to the U.S. Holder during such prior year. Fourth, interest will be
charged as if the tax computed with respect to gain or excess distribution
allocated to such prior years had been due in such prior years but had not been
paid.
The special PFIC tax rules described above will not apply to a U.S.
Holder if the U.S. Holder elects to have ILOG treated as a "qualified electing
fund" (a "QEF election") and if ILOG complies with certain reporting
requirements. Once such an election is made by a U.S. Holder, it can be revoked
only with the consent of the Service.
A U.S. Holder that makes a QEF election must include in income each year
its pro rata share of ILOG's ordinary income and net capital gain (at ordinary
income and capital gains rates, respectively) for its taxable year in which the
taxable year of ILOG ends - regardless of whether or not such ordinary earnings
and net capital gain are actually distributed to such U.S. Holder. The U.S.
Holder's basis in ADSs will be increased to reflect taxed but undistributed
income. Distributions of income that had previously been taxed will result in a
corresponding reduction of basis in ADSs and will not be taxed again as a
distribution to the U.S. Holder.
Special rules apply with respect to the calculation of the amount of the
foreign tax credits available with respect to excess distributions by a PFIC or
inclusions under a QEF election.
A U.S. Holder who owns Shares or ADSs during any year that ILOG is a
PFIC must file Internal Revenue Service Form 8621.
FOREIGN CURRENCY ISSUES
If dividends are paid in French francs, the amount of the dividend
distribution to be included in the income of a U.S. Holder will be the U.S.
dollar value of the payments made in French francs, determined at a spot French
franc/U.S. dollar rate applicable to the date such dividend is to be included in
the income of the U.S. Holder, regardless of whether
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<PAGE> 25
the payment is in fact converted into U.S. dollars. Generally, gain or loss (if
any) resulting from currency exchange fluctuations during the period from the
date the dividend is paid to the date such payment is converted into U.S.
dollars will be treated as ordinary income or loss.
ITEM 8. SELECTED FINANCIAL DATA
The following selected financial data should be read in conjunction with
"Management's Discussion and Analysis of Financial Condition and Results of
Operation," the Consolidated Financial Statements and related Notes thereto and
other financial information appearing elsewhere in this Annual Report on Form
20-F. The selected statement of operations data set forth below for each of the
years ended June 30, 1995, 1996 and 1997 and the balance sheet data at June 30,
1996 and 1997 have been derived from the Consolidated Financial Statements of
the Company, which have been prepared in accordance with U.S. GAAP and audited
by Ernst & Young Audit, independent auditors, and included herein. The selected
statement of operations data for the years ended June 30, 1993 and 1994 and
balance sheet data at June 30, 1993, 1994 and 1995 are derived from audited
financial statements not included herein.
<TABLE>
<CAPTION>
YEAR ENDED JUNE 30,
---------------------------------------------------------------
1993 1994 1995 1996 1997
------- -------- -------- -------- --------
(in thousands, except per share data)
<S> <C> <C> <C> <C> <C>
STATEMENT OF OPERATIONS DATA:
Revenues:
License fees ................. $ 4,351 $ 8,035 $ 12,233 $ 18,848 $ 22,553
Services ..................... 3,881 4,271 5,523 7,166 10,772
------- -------- -------- -------- --------
Total revenues .................. 8,232 12,306 17,756 26,014 33,325
Cost of revenues:
License fees ................. 281 282 677 1,050 801
Services ..................... 2,037 1,725 3,615 4,458 5,962
------- -------- -------- -------- --------
Total cost of revenues ..... 2,318 2,007 4,292 5,508 6,763
------- -------- -------- -------- --------
Gross profit .................... 5,914 10,299 13,464 20,506 26,562
------- -------- -------- -------- --------
Operating expenses:
Marketing and selling ........ 4,101 4,467 7,726 17,227 21,451
Research and development ..... 3,521 4,073 2,926 4,437 4,566
General and administrative ... 1,692 1,496 2,842 3,554 4,292
------- -------- -------- -------- --------
Total operating expenses ... 9,314 10,036 13,494 25,218 30,309
------- -------- -------- -------- --------
Income (loss) from operations ... (3,400) 263 (30) (4,712) (3,747)
Net interest income (expense)
and other .................... (70) (257) (352) (259) 1,124
------- -------- -------- -------- --------
Net income (loss) ............... $(3,470) $ 6 $ (382) $ (4,971) $ (2,623)
------- -------- -------- -------- --------
Net income (loss) per share ..... $ (0.61) $ 0.00 $ (0.06) $ (0.73) $ (0.31)
------- -------- -------- -------- --------
Shares and share equivalents used
in per share calculations(1).. 5,679 5,919 6,454 6,855 8,376
</TABLE>
<TABLE>
<CAPTION>
YEAR ENDED JUNE 30,
-----------------------------------------------------
1993 1994 1995 1996 1997
------ ------ ------- ------- -------
<S> <C> <C> <C> <C> <C>
BALANCE SHEET DATA:
Cash and cash equivalents ...... $1,551 $1,262 $ 5,146 $ 4,977 $26,037
Working capital ................. 1,473 2,179 7,135 5,059 25,117
Total assets .................... 6,941 9,470 15,623 19,085 41,308
Convertible bonds ............... 1,229 1,279 4,533 4,272 --
Other long term obligations...... 1,031 1,159 2,044 2,364 1,134
Shareholders' equity ............ 343 813 2,466 1,236 27,027
</TABLE>
ILOG has never declared or paid any cash dividends on its Shares. ILOG
currently intends to retain all future earnings to finance future growth and
therefore does not anticipate paying any dividends in the foreseeable future.
(1) See Note 1 of Notes to Consolidated Financial Statements for an explanation
of the determination of the number of Shares and Share equivalents used in
per share calculations.
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<PAGE> 26
ITEM 9. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS
This section contains trend analysis and other forward looking
statements that are subject to risks and uncertainties. These statements are
based on current expectations and actual results may differ materially. The
Company's actual results could differ materially from those projected in the
forward looking statements discussed herein. Factors that could cause or
contribute to such differences include but are not limited to, those set forth
under "Risk Factors" and elsewhere in this Form 20-F.
OVERVIEW
ILOG develops, markets and supports advanced software class libraries
for user interface, resource optimization and data services functions that are
fundamental to the development of strategic business applications. In 1988, the
Company began shipping software libraries developed in the LISP programming
language. In 1992, the Company started to transition its products to the C++
programming language. In 1997, 98% of the Company's total revenues were derived
from C++ based products. In 1993, the Company began shipping ILOG Views and ILOG
Solver, which together represented more than 80% of the Company's total license
fees revenues in 1997. Over the years, the Company has financed itself through a
combination of venture capital investments and interest free loans from French
government agencies and the European Union.
The Company's software development efforts are based in France. In 1997,
the Company's French-based revenues and operating expenses were 36% and 52%,
respectively, of the Company's total revenues and operating expenses.
The Company derives its revenues from the sale of development licenses
to application developers and from run time or deployment licenses once
applications are developed and deployed. Revenues from license fees represented
approximately 68% of the Company's total revenues in 1997. Gross margins from
license fees have exceeded 94% for each of the past three years. Services
consist of consulting to facilitate the adoption of the Company's products,
customer training and maintenance. Maintenance is more profitable than the other
services and is increasing relative to these other services as the Company's
installed base of customers becomes larger. Consulting, training and maintenance
accounted for 15%, 5% and 12%, respectively, of the Company's total revenues in
1997.
The Company's sales have historically been concentrated in Europe,
particularly in France. The Company believes that the North American and Asian
markets represent large growth opportunities for its products and services.
Since the beginning of 1995, the Company has significantly expanded its sales
effort by adding substantially to its U.S. and Asian direct sales forces, which
has resulted in rapid revenue and expense growth in these regions.
In 1996 and 1997, U.S. revenues grew by 131% and 33%, respectively, over
the preceding year and Asian revenues grew by 26% and 35%, respectively, over
the preceding year. The Company made major infrastructure and sales and
marketing investments in the U.S. in 1997 and 1996 resulting in consolidated
marketing and selling expenses increasing in 1996 and 1997 by 123% and 25%,
respectively, over the preceding year.
On August 20, 1997, the Company acquired the business of CPLEX
Optimization, Inc. which develops and markets math programming optimization
libraries and is based in Incline Village, Nevada. Pursuant to the acquisition
agreement, the Company issued 1.7 million shares and made an initial cash
payment of $15.0 million, and will pay an additional $5.0 million over the four
years following the date of the acquisition with interest accruing at a rate of
6.39% per annum.
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<PAGE> 27
RESULTS OF OPERATIONS
The following table sets forth certain items from the Company's
consolidated statement of operations as a percentage of total revenues for the
periods indicated:
<TABLE>
<CAPTION>
YEAR ENDED JUNE 30,
--------------------------
1995 1996 1997
---- ---- ----
<S> <C> <C> <C>
Revenues:
License fees.................................. 69% 72% 68%
Services...................................... 31 28 32
--- --- ---
Total revenues............................. 100 100 100
--- --- ---
Cost of revenues:
License fees.................................. 4 4 2
Services...................................... 20 17 18
--- --- ---
Total cost of revenues..................... 24 21 20
--- --- ---
Gross margin.................................... 76 79 80
--- --- ---
Operating expenses:
Marketing and selling......................... 44 66 64
Research and development...................... 16 17 14
General and administrative.................... 16 14 13
--- --- ---
Total operating expenses................... 76 97 91
--- --- ---
Income (loss) from operations................... 0 (18) (11)
Net interest income (expense) and other......... (2) (1) 3
--- --- ---
Net income (loss)............................... (2)% (19)% (8)%
=== === ===
</TABLE>
Revenues
Total revenues increased from $17.8 million in 1995 to $26.0 million in
1996 and to $33.3 million in 1997, representing increases of 47% and 28%,
respectively.
The Company has significantly increased its geographical market coverage
to include the U.S., Singapore, the U.K., Spain, Germany and Japan through the
establishment of subsidiaries and in a number of other countries through
distributors. During 1995, 1996 and 1997, revenues generated from customers
outside of France totaled $8.2 million, $15.0 million and $21.3 million,
respectively, representing 47%, 58% and 64% of total revenues, respectively. The
growth in revenues generated from customers outside of France resulted primarily
from the Company's presence in North America and Asia. During 1995, 1996 and
1997, revenues generated from customers in North America totaled $3.2 million,
$7.4 million and $9.9 million, respectively. During 1995, 1996 and 1997,
revenues generated from customers in Asia totaled approximately $1.9 million,
$2.4 million and $3.3 million, respectively.
In 1995, 1996 and 1997, no single customer accounted for more than 5% of
total revenues. However, an order from a single customer in a particular quarter
can materially affect the Company's revenues and operating results for such
period. See "Risk Factors -- Fluctuations in Operating Results."
License Fees. Revenues from license fees increased from $12.2 million in
1995 to $18.8 million in 1996, and to $22.6 million in 1997 to representing
increases of 54% and 20%, respectively. These increases in license fees reflect
the growing market acceptance of the Company's products and the expansion of the
Company's product offerings. During this period, the Company was generally able
to maintain the price levels of its products.
Services. Revenues from services consist of consulting, training and
maintenance. Consulting and training services are billed by the person day or on
a fixed price basis. Maintenance services are available at an annual fee of 15%
of the standard software list price. Cash related to maintenance contracts is
generally received in advance while revenues are deferred and recognized ratably
over the term of the maintenance agreement, which is typically 12 months.
Revenues from services increased from $5.5 million in 1995 to $7.2 million in
1996 and to $10.8 million in 1997,
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representing increases of 30% and 50%, respectively. The increases in revenues
from services were due primarily to the growth in the Company's installed
customer base and increased demand for the Company's consulting services.
Gross Margin
The following table sets forth the gross margin for both categories of
revenues for 1995, 1996 and 1997.
<TABLE>
<CAPTION>
YEAR ENDED JUNE 30,
------------------------
1995 1996 1997
---- ---- ----
<S> <C> <C> <C>
Gross Margin:
License fees..................................... 94% 94% 96%
Services......................................... 35 38 45
Total revenues................................ 76 79 80
</TABLE>
License Fees. The Company's gross margin for license fees is currently
affected by the pricing of its products as it relates to documentation and
packaging costs. Cost of license fees, consisting primarily of documentation,
packaging and freight expenses, increased from $677,000 in 1995 to $1.0 million
in 1996 and decreased to $801,000 in 1997 representing 6%, 6% and 4% of revenues
from license fees in 1995, 1996 and 1997, respectively. The payment of royalties
to third parties is currently not a significant component of the cost of license
fees; however, in the event the Company significantly increases the
incorporation of third-party technology in its products, the payment of such
royalties may have the effect of lowering gross margins.
Services. The Company's gross margin for services is primarily impacted
by the mix of consulting, training and maintenance revenues, where consulting
and training revenues are relatively lower margin activities. The need for
consulting and training services by the Company's customers to facilitate their
adoption of the Company's products and the Company's ability to satisfy the
demand for such services frequently has a direct impact on the Company's ability
to generate license fees. Cost of services, consisting of employee-related
expenses for these services, increased from $3.6 million in 1995 to $4.5 million
in 1996 and to $6.0 million in 1997. The services gross margin increased from
35% to 38% and to 45% in 1995, 1996 and 1997, respectively, as a result of
greater demand for the Company's consulting services.
Operating Expenses
Marketing and Selling. Marketing and selling expenses consist primarily
of salaries and other payroll related expenses such as incentive compensation,
promotional marketing activities, customer pre-sales technical support and
overhead costs relating to occupancy. Marketing and selling expenses increased
from $7.7 million in 1995 to $17.2 million in 1996 and to $21.4 million in 1997,
representing 44%, 66% and 64% of total revenues, respectively. The increase in
marketing and selling expenses as a percentage of total revenues between 1995
and 1997 is attributable to the significant worldwide expansion, particularly in
the U.S., of the Company's marketing and selling organization, which grew from
55 people at June 30, 1994 to 106 people at June 30, 1997. The increase in
headcount resulted from the opening of a sales and marketing headquarters and a
regional office in the U.S. and the opening of offices in Singapore and Germany.
The Company intends to continue the expansion of its sales and marketing
organization in all three of its geographic regions, to promote its products and
provide local customer support capability. Accordingly, the Company anticipates
that marketing and selling expenses will continue to increase in absolute terms.
Research and Development. Research and development expenses consist
principally of personnel costs, overhead costs relating to occupancy, equipment
depreciation and travel, less amounts received from French government agencies
and the European Union to reduce the cost to the Company of certain specific
research and development projects. This financial support is recorded as a
reduction of research and development expenses in the periods the projects are
undertaken and the related expenses are incurred. The following table sets forth
research and development expenses and the amounts of government funding for
1995, 1996 and 1997:
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<PAGE> 29
<TABLE>
<CAPTION>
Year Ended June 30,
----------------------------
1995 1996 1997
------- ------- ------
(in thousands)
<S> <C> <C> <C>
Gross research and development expenses.................. 5,24$ 6,98$ 4,95$
Less government funding.................................. (2,321) (2,549) (388)
------- ------- ------
Research and development expense, net of funding......... $ 2,926 $ 4,437 $4,566
======= ======= ======
</TABLE>
Research and development expenses increased from $2.9 million in 1995 to
$4.4 million in 1996 and to $4.6 million in 1997, representing 16%, 17% and 14%
of total revenues, respectively. The increase in gross research and development
expenses in 1996 was due to increased outsourcing, staffing and associated
support for software engineers required to expand and enhance the Company's
product line and undertake government funded projects. The reduced level of
funding in 1997 was due to the completion of sponsored projects. The Company has
not capitalized any software development costs and all research and development
costs have been expensed as incurred. See "Risk Factors -- Risk of Loss of
Government Research and Development Funding" and Note 1 of Notes to Consolidated
Financial Statements.
General and Administrative. General and administrative expenses consist
primarily of personnel and related overhead costs for finance and general
management. General and administrative expenses increased from $2.8 million in
1995 to $3.6 million in 1996 and to $4.3 million in 1997, representing 16%, 14%
and 13% of total revenues, respectively. The increase in general and
administrative expenses since 1995 results primarily from increased staffing to
support the Company's growth outside of France. From June 30, 1994 to June 30,
1997, the number of the Company's employees engaged in general and
administrative functions increased from 26 to 39.
Net Interest Income (Expense) and Other
Net interest income (expense) and other totaled $(352,000), $(259,000)
and $1.1 million in 1995, 1996 and 1997, respectively. The increase in net
interest income (expense) and other in 1996 was primarily due to a small foreign
exchange gain that was partially offset by higher interest expense from greater
borrowing levels and the increase in 1997 was due to a $1.1 million grant
received from an agency of the French government with respect to the Company's
establishment of subsidiaries outside of France.
CURRENCY FLUCTUATIONS
The Company operates on a multinational basis and a significant portion
of its business is conducted in currencies other than the U.S. dollar (the
financial reporting currency), namely the French franc and, to a lesser extent,
the Singapore dollar. Historically, a majority of the Company's expenses have
been incurred in French francs, especially research and development expenses. A
significant portion of the Company's revenues is denominated in French francs,
with the remainder in U.S. dollars, and, to a lesser extent, Singapore dollars
and other currencies. Fluctuations in the value of the currencies in which the
Company conducts its business relative to the U.S. dollar have caused and will
continue to cause dollar-translated amounts to vary from one period to another.
Due to the number of currencies involved, the constantly changing currency
exposures and the volatility of currency exchange rates, the Company cannot
predict the effect of exchange rate fluctuations upon future operating results.
Under the Company's accounting policy for foreign currency translation,
the results of the Company and each of its subsidiaries are measured in the
currency in which that entity primarily conducts its business (the functional
currency). The functional currencies of the Company and its subsidiaries are
their respective local currencies in accordance with Statement of Financial
Accounting Standard No. 52, "Foreign Currency Translation." All assets and
liabilities in the balance sheets of entities whose functional currency is not
the U.S. dollar are translated into U.S. dollar equivalents at exchange rates as
follows: (i) asset and liability accounts at year-end rates; and (ii) income
statement accounts at weighted average exchange rates of the year. Translation
gains or losses are recorded in shareholders' equity,
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<PAGE> 30
and transaction gains and losses are reflected in net income (loss). The net
exchange gain (loss) for 1995, 1996 and 1997 was $(179,000), $36,000 and $2,000
respectively. These amounts represent transaction gains (losses) and are
included in net interest income (expense) and other. To date, the Company has
not undertaken hedging transactions to cover its currency transaction exposure
but may undertake such transactions in a limited manner in the future. See
Note 1 of Notes to Consolidated Financial Statements.
INCOME TAXES
The Company accounts for income taxes in accordance with Statement of
Financial Accounting Standards No. 109 (SFAS 109), "Accounting for Income
Taxes."
At June 30, 1997, the Company had net operating loss carryforwards from
various tax jurisdictions of approximately $11.9 million, of which $2.1 million
and $7.0 million were in France and the U.S., respectively, which will generally
expire between 1999 and 2012 if not utilized. Pursuant to the U.S. Internal
Revenue Code, use of the U.S. net operating loss carryforwards may be limited if
a cumulative change in ownership of more than 50% occurs within any three-year
period.
As of June 30, 1997, a valuation allowance of $4.9 million had been
provided against a total deferred tax asset of $4.9 million (which consists
primarily of the tax benefit of net operating loss carryforwards). The Company's
expectation for realizing the deferred tax asset and the determination of the
amount of the valuation allowance is based upon the existence of both taxable
temporary differences and the likelihood of sufficient taxable income in the
carryforward period of certain jurisdictions.
LIQUIDITY AND CAPITAL RESOURCES
Over the last three years, the Company has financed its operations and
investments in capital equipment through the sale of equity securities and
convertible bonds for net cash proceeds of approximately $29.6 million and $4.2
million, respectively, and $2.7 million of loans from banks and European
government agencies, of which a portion were interest free.
The Company has lines of credit with a French bank allowing for a
maximum borrowing of $3.4 million available until May 1, 1998. At June 30, 1997,
$1.3 million was outstanding under this facility. The lines of credit bear
interest at the Paris InterBank Offering Rate plus 1.5% which at June 30, 1997
corresponded to an effective rate of 4.9%.
As of June 30, 1996 and 1997, the Company had cash and cash equivalents
of $5.0 million and $26.0 million, respectively, and working capital of $5.1
million and $25.1 million, respectively. The Company used cash in operations of
$1.4 million in 1997. The net cash increase of $21.0 million in 1997 was due to
$24.9 million proceeds from the Company's initial public offering in February
1997 offset by a net loss of $2.6 million and a net increase in other working
capital items.
Accounts receivable increased from $8.5 million at June 30, 1996 to $9.7
million at June 30, 1997. The increases in accounts receivable during this
period resulted from the growth in revenues and the concentration of such
revenues in the final month of each period.
Net cash used for operating activities in 1995, 1996 and 1997 totaled
$100,000, $3.6 million and $1.4 million, respectively, due to the net losses
incurred in the respective periods after adjusting for changes in working
capital.
The Company's investing activities have consisted primarily of expenses
for fixed assets, which totaled $700,000, $1.5 million and $1.1 million in 1995,
1996 and 1997, respectively.
In 1995, 1996 and 1997, the Company's financing activities provided $4.9
million, $4.0 million and $24.5 million respectively, of which $4.2 million in
1995 was from the issuance of convertible bonds and $1.0 million and $3.4
million in 1995 and 1996, respectively, was the result of the issuance of shares
to venture capital firms, certain
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<PAGE> 31
existing shareholders and to employees, and $24.9 million in 1997 were proceeds
from the Company's initial public offering in February 1997.
In August 1997 the Company used $15.0 million cash in connection with
its acquisition of the business of CPLEX Optimization, Inc.
While operating activities may provide cash in certain periods to the
extent the Company may experience growth in the future, the Company anticipates
that its operating and investing activities may use cash and, consequently, such
growth may require the Company to obtain additional sources of financing.
RISK FACTORS
In addition to the other information contained and incorporated by
reference in this Form 20-F, the following factors should be carefully
considered in evaluating the Company and its business:
HISTORY OF LOSSES; ACCUMULATED DEFICIT; FUTURE OPERATING RESULTS UNCERTAIN
The Company has incurred net losses in all but one of the last five
fiscal years. As of June 30, 1997, the Company had an accumulated deficit of
approximately $11.3 million. There can be no assurance that the Company will be
profitable on a quarterly or annual basis in the future. The Company's limited
operating history and the relative immaturity of its market, together with the
factors described under "-- Fluctuations in Operating Results" and "--
Seasonality of Operating Results," make the prediction of future operating
results impossible. The Company's past financial performance should not be
considered indicative of future results. Although the Company has experienced
revenue growth in recent periods, there can be no assurance that the Company's
revenues will continue to increase or will not decrease. Future operating
results will depend on many factors, including the growth of the market for the
Company's object oriented libraries, demand for the Company's products and
services, the level of competition, the Company's success in expanding its
direct sales force and indirect distribution channels and the ability of the
Company to develop and market new products and product enhancements and to
control costs, as well as general economic conditions. See "-- Fluctuations in
Operating Results," "-- Risk of Loss of Government Research and Development
Funding," "-- Seasonality of Operating Results" and "Management's Discussion and
Analysis of Consolidated Financial Condition and Results of Operations."
FLUCTUATIONS IN OPERATING RESULTS
The Company's operating results have varied significantly in the past
and may vary significantly in the future, on a quarterly and an annual basis, as
a result of a number of factors, many of which are outside the Company's
control. These factors include demand for the Company's products and services,
the size, timing and structure of significant licenses by customers, cost
overruns on the Company's fixed price consulting contracts, changes in the mix
of products and services licensed or sold by the Company, product life cycles,
the publication of opinions about the Company, its products and object oriented
technology by industry analysts, changes in pricing policies by the Company or
its competitors, changes in the method of product distribution (including the
mix of direct and indirect channels), customer order deferrals in anticipation
of product enhancements or new product offerings by the Company or its
competitors, customer cancellation of major planned software development
programs, the grant of research and development expense reimbursements by
government agencies and the timing of such research and development
reimbursements. Moreover, declines in general economic conditions could
precipitate significant reductions in corporate spending for information
technology, which could result in delays or cancellations of orders for the
Company's products. The Company's expense levels are relatively fixed and are
based, in significant part, on expectations of future revenues. Consequently, if
revenue levels are below expectations, expense levels could be
disproportionately high as a percentage of total revenues, and operating results
would be immediately and adversely affected. The Company has historically
operated with little backlog because its products are generally shipped as
orders are received. As a result, revenues from license fees in any quarter are
substantially dependent on orders booked and shipped in that quarter and on
sales by the Company's distributors and other resellers. Sales derived through
indirect channels are harder to predict and may have
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<PAGE> 32
lower margins than direct sales. The Company also believes that the purchase of
its products is relatively discretionary and generally involves a significant
commitment of a customer's capital resources. Therefore, any downturn in any
potential customer's business would have a significant impact on the Company's
revenues and quarterly results. In addition, the Company has historically
recognized a substantial portion of its revenues from sales booked and shipped
in the last month of a quarter such that the magnitude of quarterly fluctuations
may not become evident until late in, or at the end of, a particular quarter.
Because a number of the Company's individual orders are for significant revenue,
the Company's operating expenses are based on anticipated revenue levels and a
high percentage of the Company's expenses are relatively fixed, the failure to
ship a significant order in a particular quarter could substantially adversely
affect revenues and operating results for such quarter. To the extent that
significant sales occur earlier than expected, operating results for subsequent
quarters may be adversely affected. Revenues are difficult to forecast because
the market for the Company's products is rapidly evolving. The Company may
choose to reduce prices or increase spending in response to competition or to
pursue new market opportunities. If new competitors, technological advances by
existing competitors or other competitive factors require the Company to invest
significantly greater resources in research and development efforts, the
Company's future operating results may be adversely affected. Due to these and
other factors, the Company's quarterly revenues, expenses and operating results
could vary significantly in the future, and period-to-period comparisons should
not be relied upon as indications of future performance. There can be no
assurance that the Company will be able to grow in future periods or that it
will be able to sustain its level of revenues or its rate of revenue growth on a
quarterly or annual basis. See "-- Risks Associated with Sales Cycle," "-- Risk
of Loss of Government Research and Development Funding" and "Management's
Discussion and Analysis of Consolidated Financial Condition and Results of
Operations."
MARKET ACCEPTANCE OF OBJECT ORIENTED TECHNOLOGY
The Company's products are designed for use in object oriented software
application development. Object oriented applications are characterized by
technology, development style and programming languages that differ from those
used in traditional software applications. Object oriented technology offers
greater flexibility and re-usability of code than traditional technologies.
Object oriented languages offer significant capabilities not available from
traditional programming languages, but require greater discipline and attention
to detail from developers. In addition, object oriented modeling and analysis
techniques are more sophisticated than traditional techniques. To transform a
software application written in a traditional programming language into an
object oriented application would involve significant re-design and
re-architecture. In many cases, every line of code would have to be re-written.
The Company's growth depends upon continued growth of the market for, and
broader acceptance of, object oriented technology. There can be no assurance
that the market for the Company's products or services will grow or be sustained
or that, if it does, the Company will benefit from such growth. The acceptance
of object oriented technology depends upon the widespread adoption of object
oriented programming, and there can be no assurance as to the rate or scale of
such adoption. For example, the number of software developers using object
oriented technology is relatively small compared to the number of developers
using more traditional software development technologies. The adoption of object
oriented technology by software programmers who have traditionally used other
technology requires reorientation to significantly different programming
methods, and there can be no assurance that the acceptance of object oriented
technology will expand beyond sophisticated programmers who were early adopters
of the technology. Furthermore, there can be no assurance that potential
customers will be willing to make the investment required to retrain programmers
to build software using object oriented technology rather than structured
programming techniques or other technologies. If the market for object oriented
technology fails to grow or grows more slowly than anticipated, the Company's
business, operating results and financial condition would be materially
adversely affected.
The market for object oriented technology is characterized by a lack of
standards and numerous competitors in the areas of libraries, methodology and
services. The Company's future financial performance will depend in part upon
the development of standards that the Company's products address. There can be
no assurance that the Company will be able to respond effectively to the
evolving requirements of the market. For example, to date the Company has
focused its efforts on the C++ programming language. Should this language lose
acceptance in the marketplace or be replaced by other advanced languages, such
as Java, the Company's business, operating results and financial condition would
be materially adversely affected. See "Business -- Component and Library
Technology" and "-- Products."
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<PAGE> 33
MARKET ACCEPTANCE OF THE COMPANY'S PRODUCTS
The Company's future growth depends upon market acceptance of its
products. There can be no assurance that a significant number of organizations
will choose to use the Company's products, or that they will do so in a time
frame that will benefit the Company. In particular, many of the Company's
customers have licensed only small quantities of the Company's libraries, and
there can be no assurance that these or new customers will license additional
libraries from the Company or broadly implement object oriented technology.
Industry data indicate that many complex software development projects are
abandoned before completion or fail to satisfy user requirements, often after
the expenditure of substantial amounts of money and time. While the Company
believes that the libraries and professional services that it provides can
increase the likelihood that a software development project will be completed
successfully, the Company participates in an industry with an inherently high
failure rate and there can be no assurance that the Company's customers will
achieve success when using the Company's products and services. Any publicized
performance problems relating to object oriented technology or products offered
by the Company or by any competitor of the Company could also slow customer
adoption of the Company's products. Moreover, to the extent that the Company is
associated with unsuccessful customer projects, even if due to factors beyond
the Company's control, the Company's reputation and competitive position could
be materially and adversely affected. See "Business -- Products."
RISKS ASSOCIATED WITH SALES CYCLE
The Company's sales cycle is generally three to six months or more and
varies substantially from customer to customer. Due in part to the strategic
nature of the Company's products, potential customers are typically cautious in
making product acquisition decisions. The decision to license the Company's
products generally requires the Company to provide a significant level of
education to prospective customers regarding the uses and benefits of the
Company's products, and the Company must frequently commit substantial presales
support and consulting resources. The Company has been constrained in its
ability to provide consulting resources as a result of a lack of trained
personnel, which may cause sales cycles to be lengthened or result in the loss
of sales.
Sales of licenses are subject to a number of risks over which the
Company has little or no control, including customers' budgetary constraints,
customers' internal acceptance reviews, the success and continued internal
support of customers' own development efforts, the efforts of distributors and
the possibility of cancellation of projects by customers. The uncertain outcome
of the Company's sales efforts and the length of its sales cycles could result
in substantial fluctuations in operating results. If sales forecasted from a
specific customer for a particular quarter are not realized in that quarter, the
Company is unlikely to be able to generate revenues from alternate sources in
time to compensate for the shortfall. As a result, and due to the relatively
large size of some orders, a lost or delayed sale could have a material adverse
effect on the Company's quarterly operating results. Moreover, to the extent
that significant sales occur earlier than expected, current operating results
and/or those of subsequent quarters may be adversely affected. See "Management's
Discussion and Analysis of Consolidated Financial Condition and Results of
Operations."
RISK OF LOSS OF GOVERNMENT RESEARCH AND DEVELOPMENT FUNDING
The Company has received significant amounts of research and development
funding from the European Union and, to a lesser extent, agencies of the French
government, which approximated $2.5 million and $388,000 for 1996 and 1997,
respectively. Such funding has been netted against, and has therefore reduced,
the Company's reported research and development expenses on a dollar for dollar
basis. Relevant authorities award research and development funding on a
discretionary basis based on applications made by the Company for specific
product related projects. The Company has contracts that provide for additional
research and development funds through February 1999 based upon recent funding
applications. However, there can be no assurance that any future grants will be
made. Failure to receive future funding, a reduction in existing levels of
funding, or delays in receipt of additional funding may cause the Company's
research and development expenses to increase and may adversely affect the
Company's operating results on a dollar for dollar basis. See "-- Fluctuations
in Operating Results" and "Management's Discussion and Analysis of Consolidated
Financial Condition and Results of Operations."
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SEASONALITY OF OPERATING RESULTS
A majority of the Company's sales have historically come from Europe.
Similar to many companies in the software industry with significant sales
outside of the U.S., the Company generally realizes lower revenues (i) in the
September quarter than in the immediately preceding quarter due primarily to
reduced economic activity in Europe in the summer months; and (ii) to a lesser
extent, in the March quarter compared to the immediately preceding quarter due
to the concentration by some customers of purchases in the fourth quarter of the
calendar year, and their consequently lower purchasing activity during the
following quarter. See "-- Fluctuations in Operating Results" and "Management's
Discussion and Analysis of Consolidated Financial Condition and Results of
Operations."
RAPID TECHNOLOGICAL CHANGE AND INTRODUCTION OF NEW PRODUCTS AND PRODUCT
ENHANCEMENTS
The market for the Company's products and services is characterized by
rapid technological change, dynamic customer demands and frequent introductions
of new products and product enhancements. Customer requirements for products can
change rapidly as a result of innovations or changes within the computer
hardware and software industries, the introduction of new products and
technologies (including new hardware platforms and programming languages) and
the emergence, evolution or widespread adoption of industry standards. For
example, increasing commercial use of the Internet may give rise to new customer
requirements and new industry standards. There can be no assurance that the
Company will be successful in modifying its products and services to address
these requirements and standards. The actual or anticipated introduction of new
products, technologies and industry standards can render existing products
obsolete or unmarketable or result in delays in the purchase of such products.
As a result, the life cycles of the Company's products are difficult to
estimate. The Company must respond to developments rapidly and make substantial
product development investments. Any failure by the Company to anticipate or
respond adequately to technology developments and customer requirements, or any
significant delays in product development or introduction, could result in loss
of competitiveness and/or revenues.
The Company's future success will depend in large part on its ability to
improve its current technologies and to develop and market new products and
product enhancements that address these changing market requirements on a timely
basis. There can be no assurance that the Company will be successful in
developing and marketing new products or product enhancements, that the Company
will not experience difficulties that delay or prevent the successful
development, introduction or marketing of such products or enhancements or that
any new products or product enhancements will adequately address market
requirements and achieve market acceptance. As is customary in the software
industry, the Company has in the past experienced delays in the introduction of
new products and features, and may experience such delays in the future. If the
Company is unable, for technological or other reasons, to develop new products
or enhancements of existing products in a timely manner in response to changing
market conditions or customer requirements, the Company's business, operating
results and financial condition would be materially adversely affected. See
"Business -- Research and Development."
PRODUCT CONCENTRATION RISK
The Company currently generates more than 80% of its total license fees
from ILOG Views and ILOG Solver. The Company expects that revenues from these
two products will continue to represent a substantial portion of its total
license fees for the foreseeable future. As a result, any factor adversely
affecting licenses of either ILOG Views or ILOG Solver would have a material
adverse effect on the Company's business, operating results and financial
condition. The Company's future financial performance will depend in significant
part on the Company's successful development and introduction, and customer
acceptance, of new and enhanced versions of ILOG Views and ILOG Solver plus
other products. In addition, to the extent that competitive pressures or other
factors result in significant price erosion on these products, the Company's
results of operations would be materially adversely affected. See "Management's
Discussion and Analysis of Consolidated Financial Condition and Results of
Operations," "Business -- Products" and "-- Competition."
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COMPETITION
The Company's present direct competitors include a number of private and
public companies such as Dynatech Corporation, IBM, Neuron Data, Inc., Rogue
Wave Software, Inc., SL Corporation, Template Software, Inc. and Visix Software
Inc. The Company also competes with companies that provide packaged software
with respect to specific applications. In addition, virtually all of the
Company's customers have significant investments in their existing solutions and
have the resources necessary to enhance existing products and to develop future
products. These customers have or may develop and incorporate competing
technologies into their systems, thereby replacing the Company's current or
proposed libraries. This would eliminate their need for the Company's services
and libraries and limit future opportunities for the Company. The Company
therefore is required to persuade development personnel within these customers'
organizations to outsource the development of their software and to provide
products and solutions to these customers that cost-effectively compete with
their internally developed products. The Company expects to face additional
competition from other established and emerging companies if the market for its
libraries continues to develop and expand. In addition, current and potential
competitors have established or may establish cooperative relationships among
themselves or with third parties to increase the ability of their products to
address the needs of the Company's prospective customers. Accordingly, it is
possible that new competitors or alliances among competitors may emerge and
rapidly gain significant market share. New or enhanced products introduced by
existing or future competitors could increase the competition faced by the
Company's products. Increased competition could result in fewer customer orders,
price reductions, reduced transaction size, reduced gross margins and loss of
market share, any of which could have a material adverse effect on the Company's
business, operating results and financial condition. There can be no assurance
that the Company will be able to maintain prices for products at levels that
will enable the Company to market its products profitably. Any decrease in
prices, as a result of competition or otherwise, could have a material adverse
effect on the Company's business, operating results and financial condition.
Some of the Company's current, and many of the Company's potential,
competitors have longer operating histories, significantly greater financial,
technical, marketing, service and other resources, significantly greater name
recognition, broader product offerings and a larger installed base of customers
than the Company. In addition, the Company's current and potential competitors
may have well-established relationships with current and potential customers of
the Company. As a result, such competitors may be able to devote greater
resources to the development, promotion and sale of their products, may have
more direct access to corporate decision-makers based on previous relationships
and may be able to respond more quickly to new or emerging technologies and
changes in customer requirements. There can be no assurance that the Company
will be able to compete successfully against current or future competitors or
that competitive pressures will not have a material adverse effect on the
Company's business, operating results and financial condition.
DEPENDENCE UPON DEVELOPMENT OF SALES AND MARKETING FORCE
The Company has made a significant investment in recent years in the
expansion of its sales and marketing force, primarily in the U.S., and plans to
continue to expand its sales and marketing force. The Company's future success
will depend in part upon the productivity of its sales and marketing force and
the ability of the Company to continue to attract, integrate, train, motivate
and retain new sales and marketing personnel. There can be no assurance that the
Company's recent and planned investment in sales and marketing will ultimately
prove to be successful or that the incremental revenues generated will exceed
the significant incremental costs associated with these efforts. In addition,
there can be no assurance that the Company's sales and marketing organization
will be able to compete successfully against the significantly more extensive
and better funded sales and marketing operations of many of the Company's
current and potential competitors. The Company's inability to develop and manage
its sales and marketing force expansion effectively could have a material
adverse effect on the Company's business, operating results and financial
condition. See "Business -- Sales and Marketing."
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<PAGE> 36
DEPENDENCE ON KEY PERSONNEL
The Company's future success will depend in significant part upon the
continued service of its key technical, sales and senior management personnel,
including the Company's President and Chief Executive Officer, Pierre Haren. The
Company is particularly dependent upon its technical personnel with expertise in
object oriented technology. The loss of the services of one or more of the
Company's key employees could have a material adverse effect on the Company's
business, operating results and financial condition. The Company's future
success will depend on its ability to attract, integrate, train, motivate and
retain highly qualified technical, sales and managerial personnel, and there can
be no assurance that the Company will be able to do so. Competition for such
personnel is intense, especially the competition for technical personnel with
expertise in object oriented technology. The Company expects that such
competition will continue for the foreseeable future, and may intensify. If the
Company is unable to hire qualified personnel on a timely basis in the future,
the Company's business, operating results and financial condition would be
materially adversely affected. Additions of new personnel and departures of
existing personnel, particularly in key positions, can be disruptive, might lead
to additional departures of existing personnel and could have a material adverse
effect upon the Company's business, operating results and financial condition.
See "Business -- Sales and Marketing," "-- Employees" and "Management."
The addition and assimilation of new personnel may be made more
difficult by the fact that the Company's research and development personnel are
located in France, and its sales and marketing activities are located on three
continents, thus requiring the coordination of organizations separated by
geography and time zones, and the interaction of personnel with disparate
business backgrounds, languages and cultures. See "-- Risks Associated with
Worldwide Operations."
RISKS ASSOCIATED WITH WORLDWIDE OPERATIONS
The Company's engineering and research and development operations are
located in France, and its sales and marketing operations are located on three
continents. The geographic distance between these locations has in the past led,
and could in the future lead, to logistical and communications difficulties.
There can be no assurance that the geographic, time zone, language and cultural
differences between the Company's French, North American and Singapore personnel
and operations will not result in problems that materially adversely affect the
Company's business, operating results and financial condition. Further, the
Company's operations may be directly affected by economic and political
conditions in the countries where the Company does business.
The Company expects to commit additional time and resources to expanding
its worldwide sales and marketing activities, localizing its products for
selected markets and developing local sales and support channels. There can be
no assurance that such efforts will be successful. Failure to sustain or
increase worldwide revenue, especially in North America and Asia, could have a
material adverse effect on the Company's business, operating results and
financial condition. Worldwide operations are subject to a number of risks,
including the costs of localizing products for different countries, longer
accounts receivable collection periods in certain geographic regions, especially
Europe, and greater difficulty in accounts receivable collections, unexpected
changes in regulatory requirements, dependence on independent resellers and
technology standards, import and export restrictions and tariffs, difficulties
and costs of staffing and managing international operations, potentially adverse
tax consequences, political instability, the burdens of complying with multiple,
potentially conflicting laws and the impact of business cycles and economic
instability outside core markets. Approximately 36% of the Company's sales in
1997 were denominated in French francs, with the remainder in U.S. dollars and,
to a lesser extent, Singapore dollars and other currencies. An increase in the
value of the French franc relative to foreign currencies could make the
Company's products more expensive and, therefore, less competitive in other
markets. See "Management's Discussion and Analysis of Consolidated Financial
Condition and Results of Operations" and "Business -- Sales and Marketing."
MANAGEMENT OF POTENTIAL GROWTH
The Company has recently experienced a period of growth in revenues that
has placed a significant strain on its management systems and resources. In
addition, the size of the Company's staff increased from 223 to 299
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employees during 1997. Further increases in the number of employees are
anticipated in 1998. Much of this growth has occurred and will occur in North
America, thus increasing the Company's need for information and communication
systems. The Company's ability to manage any future growth effectively will
require it to continue to improve its operational, financial and management
controls, accounting and reporting systems and procedures and other internal
processes, and there can be no assurance that the Company will be able to make
such improvements in an efficient and timely manner or that such improvement
will be adequate. If the Company's management is unable to manage growth and
change effectively, the Company's business, operating results and financial
condition could be materially adversely affected.
ACQUISITIONS
On August 20, 1997, the Company acquired the business of CPLEX
Optimization, Inc. ("CPLEX") which develops and markets math programming
optimization libraries, with operations in Incline Village, Nevada. CPLEX
generated net revenues of $5.7 million in 1997 and at August 20, 1997 had 13
employees all of which joined ILOG. There can be no assurance that CPLEX's
operations will be profitable after the acquisition. Moreover, there can be no
assurance that the anticipated benefits of the CPLEX acquisition will be
realized. The process of integrating CPLEX's business into the Company's
operations may result in unforeseen operating difficulties and could absorb
significant management attention, expenditures that would otherwise be available
for the ongoing development of the Company's business.
The Company may in the future pursue other acquisitions of complementary
product lines, technologies or businesses. Future acquisitions by the Company
could result in potentially dilutive issuances of equity securities, the
incurrence of debt and contingent liabilities and amortization expenses related
to goodwill and other intangible assets, which could materially adversely affect
any Company profitability. In addition, acquisitions, such as CPLEX, involve
numerous risks, including difficulties in the assimilation of the operations,
technologies and products of the acquired companies, the diversion of
management's attention from other business concerns, risks of entering markets
in which the Company may have or limited direct prior experience, operating
companies in different geographical locations with different cultures, and the
potential loss of key employees of the acquired company. There are currently no
agreements with respect to any acquisitions. In the event that such an
acquisition does occur, however, there can be no assurance as to the effect
thereof on the Company's business, financial condition or operating results.
RISK OF SOFTWARE DEFECTS; PRODUCT LIABILITY
As a result of their complexity, software products frequently contain
undetected errors or failures, especially when first introduced or when new
versions or enhancements are released. There can be no assurance that, despite
testing by the Company and testing and use by current and potential customers,
errors will not be found in new products and product enhancements released by
the Company in the future. The occurrence of such errors could result in
significant losses to the Company or a customer, especially if such errors occur
in strategic applications. Such occurrence could also result in reduced market
acceptance of the Company's products, which would have a material adverse effect
on the Company's business, operating results and financial condition. The
Company's license agreements with its customers typically contain provisions
designed to limit the Company's exposure to potential product liability and
other claims. It is possible, however, that the limitation of liability
provisions contained in the Company's license agreements, especially unsigned
"shrink-wrap" licenses, may not be effective under the laws of certain
jurisdictions. Consequently, the sale and support of the Company's software by
the Company entail the risk of such claims in the future. The Company currently
does not have insurance against product liability risks or errors or omissions
coverage, and there can be no assurance that such insurance will be available to
the Company on commercially reasonable terms or at all. A product liability
claim or claim for economic loss brought against the Company could have a
material adverse effect upon the Company's business, operating results and
financial condition.
CURRENCY FLUCTUATIONS
The Company publishes its financial statements in U.S. dollars. The
Company has historically recorded a majority of its expenses in French francs,
especially research and development expenses. A significant portion of the
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<PAGE> 38
Company's revenues is denominated in French francs, with the remainder in U.S.
dollars and, to a lesser extent, Singapore dollars and other currencies.
Fluctuations in the value of the currencies in which the Company conducts its
business relative to the U.S. dollar have caused and will continue to cause
dollar-translated amounts to vary from one period to another. Due to the number
of currencies involved, the constantly changing currency exposures and the
volatility of currency exchange rates, the Company cannot predict the effect of
exchange rate fluctuations upon future operating results. To date, the Company
has not undertaken hedging transactions to cover its currency transaction
exposure but may undertake such transactions in a limited manner in the future.
See "Management's Discussion and Analysis of Consolidated Financial Condition
and Results of Operations."
PROTECTION OF INTELLECTUAL PROPERTY
The Company's success is heavily dependent upon its proprietary
technology. The Company relies primarily on a combination of copyright and
trademark laws, trade secrets, confidentiality procedures and contractual
provisions to protect its proprietary technology. For example, the Company
licenses its software pursuant to signed license agreements and, to a lesser
extent, "shrink-wrap" licenses displayed on product packaging, which impose
certain restrictions on the licensee's ability to use the software. In addition,
the Company seeks to avoid disclosure of its trade secrets, including requiring
those persons with access to the Company's proprietary information to execute
confidentiality agreements with the Company and restricting access to the
Company's source codes. The Company seeks to protect its software, documentation
and other written materials under the laws relating to trade secret and
copyright, which afford only limited protection. The Company has no patents or
pending patent applications.
Despite the Company's efforts to protect its proprietary rights,
unauthorized parties may attempt to copy aspects of the Company's products,
obtain or use information that the Company regards as proprietary or use or make
copies of the Company's products. Policing unauthorized use of the Company's
products is difficult. In addition, the laws of many jurisdictions do not
protect the Company's proprietary rights to as great an extent as do the laws of
France and the U.S. In particular, "shrink-wrap" licenses may be wholly or
partially unenforceable under the laws of certain jurisdictions, and copyright
and trade secret protection for software may be unavailable in certain
countries. Under French intellectual property laws, rights over software are not
patentable but are protected under copyright law and infringements by third
parties can be enjoined. There can be no assurance that the Company's means of
protecting its proprietary rights will be adequate or that the Company's
competitors will not independently develop similar technology.
There can be no assurance that the Company will not receive
communications in the future from third parties asserting that the Company's
products infringe, or may infringe, on their proprietary rights. There can be no
assurance that licenses to disputed third-party technology would be available on
reasonable commercial terms, if at all. In addition, the Company may initiate
claims or litigation against third parties for infringement of the Company's
proprietary rights or to establish the validity of the Company's proprietary
rights. Litigation to determine the validity of any claims could result in
significant expense to the Company and divert the efforts of the Company's
technical and management personnel from productive tasks, whether or not such
litigation were determined in favor of the Company. In the event of an adverse
ruling in any such litigation, the Company might be required to pay substantial
damages, discontinue the use and sale of infringing products, expend significant
resources to develop non-infringing technology or obtain licenses to infringing
technology. In the event of a successful claim against the Company and the
failure of the Company to develop or license a substitute technology, the
Company's business, operating results and financial condition would be
materially adversely affected. As the number of software products in the
industry increases and the functionality of these products further overlaps, the
Company believes that software developers may become increasingly subject to
infringement claims. Any such claims against the Company, with or without merit,
as well as claims initiated by the Company against third parties, could be time
consuming and expensive to defend or prosecute and to resolve.
VOLATILITY OF SHARE PRICE
The market price of the Company's ADSs has experienced significant
fluctuation and may continue to fluctuate significantly. In particular, the
trading price of the ADSs could be subject to wide fluctuations in response to
quarterly
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<PAGE> 39
variations in operating results, announcements of technological innovations or
new products by the Company or its competitors, changes in financial estimates
by securities analysts and other events or factors, many of which are beyond the
Company's control. The Company's failure to meet analysts expectations for the
quarter ended March 31, 1997 caused the Company's stock price to significantly
decline. In some future quarters the Company's operating results may be below
expectations of public market analysts and investors. In such event, or in the
event that adverse conditions prevail or are perceived to prevail generally or
with respect to the Company's business, the price of the Company's ADSs would
likely be immediately materially adversely affected. In addition, the stock
market has experienced volatility that has particularly affected the market
prices of equity securities of many technology companies and that often has been
unrelated or disproportionate to the operating performance of such companies.
These broad market fluctuations, as well as general economic, political and
market conditions such as recessions or international currency fluctuations, may
adversely affect the market price of the ADSs.
CONTROL BY PRINCIPAL SHAREHOLDERS, OFFICERS AND DIRECTORS; FACTORS INHIBITING
TAKEOVER
As of August 31, 1997, the Company's principal shareholders, executive
officers and directors and their affiliates beneficially owned approximately
47.01% of the Company's Shares. As a result, such persons and entities, acting
together, will have the effective ability to control the Company and direct its
affairs and business. The concentration of ownership of the Company's Shares may
have the effect of delaying, deferring or preventing a change in control of the
Company.
Pursuant to the Company's charter or statuts, the members of the
Company's Board of Directors each serve for a three-year term. One-third of the
directors are elected every year, which may make it more difficult for the
Company's shareholders to replace the Board of Directors. The Board of Directors
has also been authorized by the shareholders of the Company to effect increases
in the Company's share capital in the context of a tender offer or exchange
offer for the securities of the Company, which could have an anti-takeover
effect. See "Management," "Principal and Selling Shareholders," "Description of
Share Capital" and "Limitations Affecting Security Holders."
ENFORCEABILITY OF U.S. JUDGMENTS AGAINST FRENCH CORPORATIONS, DIRECTORS AND
OFFICERS
Judgments of U.S. courts, including judgments against the Company or its
directors or officers, predicated on the civil liability provisions of the
federal securities laws of the U.S. may not be enforceable in the Republic of
France. See "Enforcement of Civil Liabilities."
NO DIVIDENDS
The Company has not paid any cash dividends on its share capital to
date. The Company currently anticipates that it will retain any future earnings
for use in its business and, therefore, does not anticipate paying any cash
dividends in the foreseeable future. Any dividend would be declared and paid in
French francs and under the French Company Law (the "French Law") and the
Company's statuts, may only be paid from pre-consolidated net income, as
increased or reduced, as the case may be, by any net income or loss of ILOG
carried forward from prior years.
RISKS ASSOCIATED WITH STOCK OPTIONS GRANTED TO FRENCH TAXPAYERS
In December 1996, the French Parliament adopted measures that require
French companies to pay French social contributions and certain salary-based
taxes, which may represent for the Company approximately 45% of the taxable
salary, on the difference between the exercise price of a stock option and the
fair market value of the underlying shares on the exercise date if the
beneficiary of the stock option exercises such option and disposes of the shares
before a five year period following the grant of the option. The new law applies
to all options exercised after January 1, 1997 by persons whose salary is
subject to French social contributions. At June 30, 1997 approximately 120 such
persons hold in aggregate a total of 314,000 options at an average exercise
price of FF11.24 ($1.91). In the event the Company is required to pay such
French social contribution, the amount would be charged as an expense when
determined and would have a material adverse effect on the Company's operating
results and financial condition.
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CERTAIN MATTERS RELATED TO FRENCH COMPANIES
As a French societe anonyme, the Company will be subject to certain
requirements not generally applicable to corporations organized in U.S.
jurisdictions. Among other things, holders of ADSs will be subject to voting
procedures that are more complicated than for U.S. jurisdictions. The Company's
ability to increase its share capital is subject to shareholder approval at an
extraordinary shareholders' meeting. Shareholder approval must in any event be
obtained for any issuances of share capital in connection with a merger even if
the Company is the surviving entity, or an acquisition of assets in exchange for
shares of the Company. In the case of an extraordinary general meeting, the
presence, in person or by proxy, of shareholders holding one-third of the Shares
upon first notice and one-quarter of the Shares upon second notice is required
for a quorum. The complicated voting procedures under French Law, coupled with
the increasing practice of ADS holders not to exercise their voting rights, may
prevent the Company from obtaining a quorum for future shareholders' meetings
and thereby impair the ability of the Company to take any action that requires
shareholder approval.
ITEM 10. DIRECTORS AND OFFICERS OF REGISTRANT
In accordance with French law governing a societe anonyme, the Company's
affairs are managed by its Board of Directors and by its Chairman, President and
Chief Executive Officer, who has full executive authority to manage the affairs
of the Company, subject to the prior authorization of the Board of Directors or
of the Company's shareholders for certain decisions specified by law.
DIRECTORS AND EXECUTIVE OFFICERS
Under French law, the Board of Directors prepares and presents the
year-end accounts of the Company to the shareholders and convenes shareholders'
meetings. In addition, the Board of Directors reviews and monitors ILOG'
economic, financial and technical strategies. French law provides that the Board
of Directors be composed of no fewer than three and no more than 24 members. The
actual number of directors must be within such limits and may be provided for in
the statuts or determined by the shareholders at the annual general meeting of
shareholders. The number of members of the Board may be increased only by
decision of the shareholders. The Company's Board of Directors currently
consists of nine members. Each director must be a shareholder of the Company.
Under French law a director may be an individual or a corporation, but the
Chairman must be an individual. Each director is elected for a three year term.
There is no limitation, other than applicable age limits, on the number of terms
that a director may serve. Directors are elected by the shareholders and serve
until the expiration of their respective terms, or until their resignation,
death or removal, with or without cause, by the shareholders. Vacancies which
exist in the Board of Directors may be filled by the Board of Directors, pending
the next shareholders' meeting.
Meetings of the Board of Directors of ILOG are normally convened and
presided over by the Chairman, who is elected by the Board of Directors. A
quorum consists of one-half of the members of the Board of Directors and
decisions are generally taken by a vote of the majority of the members present
or represented by other members of the Board of Directors. The Chairman has the
ability to cast a deciding vote in the event of a tie vote. A director may give
a proxy to another director but a director cannot represent more than one other
director at any particular meeting. Members of the Board of Directors
represented by another member at meetings do not count for purposes of
determining the existence of a quorum. As required under French law, one
representative of the employees is entitled to be present at meetings of the
Board of Directors of the Company, but does not have any voting right.
Directors are required to comply with applicable law and ILOG's statuts.
Under French law, directors are liable for violations of French legal or
regulatory requirements applicable to societe anonymes, violation of the
Company's statuts or mismanagement. Directors may be held liable for such
actions both individually and jointly with the other directors.
The Board currently has two committees: the Audit Committee, currently
composed of Philippe Claude and Marc Fourrier, and a Compensation Committee,
currently composed of Fredric Harmen and Albert Gabizon. The Audit Committee
primarily reviews the internal accounting procedures of the Company and consults
with and reviews the
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services provided by the Company's independent auditors. The Compensation
Committee determines the compensation of Pierre Haren, the Chairman and Chief
Executive Officer of the Company, and the other executive officers of the
Company and makes recommendations as to the implementation of the Company's
stock option and other employee benefits plans. Each of the Committees makes
recommendations to the Board of Directors for final decision by the Board.
Under French law, the Chairman and Chief Executive Officer has the
broadest powers to act on behalf of ILOG and to represent ILOG in dealings with
third parties, subject only to those powers expressly reserved by law to the
Board of Directors or the shareholders. The Chairman and Chief Executive Officer
determines, and is responsible for the implementation of, the goals, strategies
and budgets of ILOG, which are reviewed and monitored by the Board of Directors.
The Board of Directors has the power to appoint and remove, at any time, the
Chairman and Chief Executive Officer.
The following table sets forth the names, ages and positions of the
directors and executive officers of ILOG:
<TABLE>
<CAPTION>
Name Age Position with the Company
- --------------------------------------- --- -----------------------------------------------
<S> <C> <C>
Pierre Haren........................... 43 Chairman and Chief Executive Officer
Patrick Albert......................... 41 Chief Technology Officer
Dr. Robert Bixby....................... 51 Director and Technology Fellow
Edouard Efira.......................... 49 Director and Executive Vice President, Business
Development
Roger Friedberger...................... 46 Chief Financial Officer
Todd Lowe.............................. 41 Director and Executive Vice President, CPLEX
Business
Jean Pommier........................... 33 Vice President, Consulting
William Scull.......................... 44 Vice President of Worldwide Marketing
Jean-Francois Abramatic................ 47 Director
Philippe Claude........................ 49 Director
Marc Fourrier.......................... 43 Director
Albert Gabizon......................... 65 Director
Fredric Harman......................... 36 Director
</TABLE>
The other officers of ILOG are as follows:
<TABLE>
<CAPTION>
Name Age Position with the Company
- --------------------------------------- --- -----------------------------------------------
<S> <C> <C>
Bounthara Ing.......................... 34 President, ILOG Pte Ltd. (Singapore)
John Lynch............................. 41 President, ILOG, Inc.
Manuel Montalban....................... 38 Vice President, Europe
</TABLE>
Pierre Haren is a founder of the Company and was the Managing Director
from April 1987 to December 1995, when he was appointed Chairman and Chief
Executive Officer of the Company. Prior to founding ILOG, Mr. Haren spent four
years in charge of the SMECI Expert System Shell Project with the Institut
National de Recherche en Informatique et en Automatique ("INRIA") following a
three-year term directing the investment department of the French Ministry of
the Sea. Mr. Haren received engineering degrees from Ecole Polytechnique in 1976
and Ecole Nationale des Ponts et Chaussees in 1978. He received his M.S. from
Massachusetts Institute of Technology ("MIT") in 1978 and Ph.D. from MIT in
Civil Engineering in 1980. Mr. Haren's term on the Board of Directors expires in
1999.
Patrick Albert is a founder of the Company and has been Chief Technology
Officer of the Company since July 1996, having previously held the position of
Vice President of Research and Development from 1990. Mr. Albert was head of the
Expert System Shell Department of Groupe Bull prior to joining the Company in
April 1987. Mr. Albert received an M.S. in Information Technology from the
University of Paris VII in 1982.
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<PAGE> 42
Dr. Robert Bixby has served as a Director and Technology Fellow of the
Company since August 1997. Dr. Bixby was a founder of, and from 1988 until
August 1997, was Chairman of CPLEX Optimization, Inc. Dr. Bixby is a Noah
Harding Research Professor Emeritus of applied mathematics at Rice University
and is a member of the National Academy of Engineering. Dr. Bixby's term on the
Board of Directors expires in 2000.
Edouard Efira has served as a Director of the Company since August 1997
and has been the Company's Executive Vice President, Business Development since
January 1997. From May 1996 to January 1997, he was Chief Operating Officer of
the Company and, from January 1989 to May 1996, he was Director of International
Sales.
Mr. Efira's term on the Board of Directors expires in 2000.
Roger Friedberger has served as Chief Financial Officer of the Company
since May 1996. From March 1988 through March 1996, he served as Senior Vice
President, Chief Financial Officer and Secretary of Insignia Solutions plc, a
software company. Mr. Friedberger graduated from the University of Leeds,
England in 1972 with a Bachelor of Commerce degree in Accounting and Law. He is
a certified public accountant in California and a member of the Institute of
Chartered Accountants in England and Wales.
Todd Lowe has served as a Director and the Company's Executive Vice
President, CPLEX Business since August 1997. From 1988 until 1997 he was
President of CPLEX Optimization, Inc. He received a Chemical Engineering degree
from the University of California. Mr. Lowe's term on the Board of Directors
expires in 2000.
Jean Pommier has been Vice President, Consulting since January 1997.
From January 1995 to January 1997, he was Director of Consulting and Quality
and, from March 1991 to January 1995, he was Director of Consulting. Mr. Pommier
joined the Company in August 1987 as a software engineer. Mr. Pommier received
an Engineering degree from ENSAM in 1986 and received an M.S. in Computer
Science from the University of Nice in 1987.
William Scull has served as Vice President of Worldwide Marketing since
September 1997. From October 1993 until September 1997, Mr. Scull was president
of Catalyst Consultants, a strategic marketing consulting firm based in Los
Altos, California. From November 1988 until September 1993, Mr. Scull was at
Tandem Computers holding a number of management positions where his most recent
position was as Director of Corporate Development, New Ventures. Mr. Scull
received an M.B.A. from Stanford University in 1981 and a Master of Science
degree in Engineering from MIT in 1979.
Jean-Francois Abramatic has served as a director of the Company since
December 1994. Since 1992, Mr. Abramatic has been Director of Development at
INRIA. In September 1996, Mr. Abramatic was appointed Chairman of the
International World Wide Web Consortium and as an Associate Director of the MIT
Laboratory of Computer Science. Mr. Abramatic received an Engineering degree
from Ecole des Mines, Nancy in 1971 and a Ph.D. from the University of Paris VI
in 1980. Mr. Abramatic's term on the Board of Directors expires in 1997.
Philippe Claude has served as the permanent representative of Atlas
Venture Europe Fund B.V., a director of the Company, since January 1995, and was
appointed a director of the Company in his individual capacity in September
1996. Mr. Claude has been a General Partner of Atlas Venture, a venture capital
firm, since January 1993. Prior to joining Atlas Venture Group, he had been a
general partner of Partech International since 1987. He is also a Director of
Business Objects S.A., a software company. Mr. Claude graduated from the
University of Brussels, Solvay School in 1971 and received an M.B.A. from Oregon
State University in 1973. Mr. Claude's term on the Board of Directors expires in
1999.
Marc Fourrier has served as a director of the Company since April 1987.
Mr. Fourrier is President of Delphis, a holding company that specializes in the
creation and development of high technology companies. From 1988 to June 1997,
Mr. Fourrier was a principal of Cleversys S.A., a consulting firm which
specializes in information technology. Mr. Fourrier received engineering degrees
from Ecole Polytechnique in 1976 and Ecole Nationale des Ponts et Chaussees in
1978, and an M.S. from MIT in 1978. Mr. Fourrier's term on the Board of
Directors expires in 1998.
Albert Gabizon has served as the permanent representative of
Eurocontinental Ventures S.A., a director of the Company, since December 1995,
and was appointed as a director of the Company in his individual capacity in
September
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<PAGE> 43
1996. In 1987, Mr. Gabizon founded Eurocontinental Ventures S.A., a Luxemburg
holding company specializing in European venture capital investments and
Eurocontinental (Managers) Limited. Mr. Gabizon is currently Chief Executive
Officer of Eurocontinental (Managers) Limited and Chairman of Eurocontinental
(Advisors) Limited, both of which are affiliates of Eurocontinental Ventures,
S.A. Mr. Gabizon received an M.B.A. from Ecole des Hautes Etudes Commerciales in
1953, and a law degree and a Ph.D. in economics from Paris University in 1957.
Mr. Gabizon's term on the Board of Directors expires in 1997.
Fredric Harman has served as the permanent representative of Oak
Management Corporation, a director of the Company, since December 1994, and was
appointed a director of the Company in his individual capacity in September
1996. Mr. Harman is a General Partner of Oak Investment Partners, a venture
capital firm. Mr. Harman was formerly with Morgan Stanley where he was a General
Partner of Morgan Stanley Venture Partners, L.P., a venture capital firm. He is
also a Director of SPSS, Inc., a software company. Mr. Harman received his B.S.
and an M.S. in Electrical Engineering from Stanford University in 1983, and an
M.B.A. from the Harvard Graduate School of Business in 1987.
Mr. Harman's term on the Board of Directors expires in 1998.
Bounthara Ing has served as President of ILOG Pte Ltd. Singapore since
January 1994. He joined the Company in April 1988 as Manager of the Graphic
Department. Mr. Ing received an Engineering degree from Ecole Centrale de Paris
in 1986.
John Lynch was appointed President of ILOG, Inc. in January 1997 after
having served as Senior Vice President, The Americas since August 1996 and Vice
President, North America since joining the Company in May 1995. Prior to joining
the Company, Mr. Lynch was Director of Business Marketing Development at Sun
Microsystems from 1989 and was appointed Director, North American Sales, of
Sunsoft Inc., in 1991. Mr. Lynch received a B.B.A. from Loyola University of
Chicago in 1978.
Manuel Montalban was appointed Vice President, Europe in July 1996 after
having served as European Sales Manager of the Company from February 1993 to
July 1996. From April 1991 to February 1993, Mr. Montalban served as General
Manager of ILOG Spain and, from 1987 to April 1991, as Manager of the Consulting
Department. Mr. Montalban received a Ph.D. in Computer Science at the University
of Nice in 1987.
LIABILITY INSURANCE
French law prohibits the Company from entering into indemnification
agreements with its directors and officers providing for limitations on personal
liability for damages and other costs and expenses that may be incurred by
directors and officers arising out of or related to acts or omissions in such
capacity. French law also prohibits the statuts of the Company from providing
for the limitation of liability of a member of the Board of Directors. These
prohibitions may adversely affect the ability of the Company to attract and
retain directors. Generally, under French law, directors and officers will not
be held personally liable for decisions taken diligently and in the corporate
interest of the Company.
The Company has entered into an agreement with each of its directors,
its Chairman and Chief Executive Officer, its Chief Operating Officer, its Chief
Financial Officer and other members of senior management designated by the Board
of Directors pursuant to which the Company agreed to contract for and maintain
liability insurance against liabilities which may be incurred by such persons in
their respective capacities, including liabilities which may be incurred under
the U.S. federal and state securities laws, subject to certain limitations. The
Company believes that entering into such agreements and maintaining appropriate
liability insurance for its directors and officers will assist the Company in
attracting and retaining qualified individuals to serve as directors and
officers.
ITEM 11. COMPENSATION OF DIRECTOR AND OFFICERS
The aggregate amount of compensation of all executive officers of ILOG
as a group (6 persons) paid or accrued for services in all capacities for the
year ended June 30, 1997 was approximately $1.1 million. In accordance with
French law relating to commercial companies, only shareholders may determine
directors fees to the Board of Directors. The Board of Directors then has full
and discretionary authority to decide the allocation of the directors' fees
authorized
-43-
<PAGE> 44
by the shareholders among its members. The shareholders of the Company have not
authorized the payment of any directors fees for 1997.
ITEM 12. OPTIONS TO PURCHASE SECURITIES FROM REGISTRANT OR SUBSIDIARIES
The Company has five employee stock option or purchase plans currently
in effect. The following is a summary description of each of the Company's
plans.
The 1989 Stock Option Plan. In a general meeting held in 1989, the
shareholders of the Company authorized the Board of Directors to grant options
with respect to an aggregate of 672,500 Shares at a fixed price during the first
year of grant and thereafter as determined by the Board of Directors on the date
of grant, at a price based on the net assets of the Company (the "1989 Plan").
The Board of Directors was authorized to grant options under the 1989 Plan until
January 1, 1994. Under the 1989 Plan, options become exercisable during a
four-year period from the date of grant, subject to vesting on the basis of
one-fourth of the Shares upon the date of grant, and one-fourth of the Shares in
each of the three following years. As of August 31, 1997 options with respect to
an aggregate of 19,375 Shares were outstanding under the 1989 Plan at an
exercise price of FF1.16 per share.
The 1992 Stock Option Plan. In general meetings held in 1992 and in
1993, the shareholders of the Company authorized the Board of Directors to grant
options with respect to an aggregate of 614,275 Shares at a price to be
determined by the Board of Directors on the date of grant based on the net
assets of the Company and increased by a reasonable estimate of the future
profitability of the Company (the "1992 Plan"). The Board of Directors may grant
options under the 1992 Plan until June 1998. Under the 1992 Plan, options become
exercisable for a period of five years following the date of grant subject to
vesting on the basis of one-fourth of the Shares upon the date of grant, and
one-fourth in each of the three following years. As of August 31, 1997, options
with respect to an aggregate of 473,310 Shares were outstanding under the 1992
Plan at exercise prices ranging from FF9.00 per share to FF32.00 per share and
options to purchase 6,359 Shares remained available for grant under the 1992
Plan.
The 1996 Stock Option Plan. In 1994, the shareholders of the Company
authorized the Board of Directors to grant up to 500,000 options at a price to
be determined by the Board of Directors on the date of grant based on the net
assets of the Company, a reasonable estimate of its future profitability and its
future development prospects (the "1994 Plan"). The Board of Directors may grant
such options until November 23, 1999. In order to comply with the U.S. Internal
Revenue Code of 1986, as amended (the "Code") for the granting of incentive
stock options, the Company decided to adopt a new plan (the "1996 Plan"),
incorporating Shares authorized under the 1994 Plan. The 1996 Plan was approved
by the shareholders on May 30, 1996, and on that date 600,000 Shares, on October
17, 1996, 200,000 Shares and on August 20, 1997 1,600,000 Shares, were added to
the 1996 Plan with respect to which options may also be granted by the Board of
Directors until November 23, 1999. Under the 1996 Plan, optionees are entitled
to exercise options for ten years (or seven years less one day for U.K.
employees). Under the 1996 Plan, generally and unless otherwise specified,
one-fourth of the Shares subject to option vest 12 months after the date of
grant of options and 1/48 of the Shares vest each month thereafter provided the
optionee continues to render services to the Company. As of August 31, 1997,
options with respect to an aggregate of 2,611,487 Shares were outstanding at
exercise prices ranging from FF12.80 to FF50.00, and options to purchase 647,545
Shares remained available for grant under the 1996 Plan.
As of August 31, 1997, options to purchase an aggregate of 666,613
Shares were held by executive directors and/or executive officers of the Company
as a group (8 persons). Under French Law, the Company cannot grant options to
members of the Board of Directors (other than the Chairman, Chief Executive
Officer or Managing Director) who are not employees.
All Options granted under the 1989, 1992 and 1996 Plans have a term of
ten years, other than options granted to employees in the United Kingdom which
have a term of seven years less one day. Generally, and unless otherwise
specified, if an optionee terminates his or her employment with the Company, the
optionee may exercise only those options vested as of the date of termination
and must effect such exercise within three months. In general, if an optionee
dies during his or her employment, or within three months after termination of
employment, such person's options may
-44-
<PAGE> 45
be exercised up to six months after his or her death to the extent vested at the
time of his or her death or termination. No option may be transferred by the
optionee other than by will or the laws of intestacy.
In December 1996, the French parliament adopted a law that requires
French companies to pay French social contributions and certain salary-based
taxes, which may represent, for the Company, up to 45% of the taxable salary, on
the difference between the exercise price of a stock option and the fair market
value of the underlying shares on the exercise date, if the beneficiary disposes
of the shares before a five-year period following the grant of the option. The
new law is consistent with French personal income tax law pursuant to which the
difference between the option exercise price and the fair value of the shares at
the grant date is treated as salary income if the shares are sold or otherwise
disposed of within five years of the option grant. The law applies to all
options, whatever the grant date, exercised after January 1, 1997.
The Company has not recorded a liability for social charges which may be
assessed for options granted as of December 31, 1996 as the liability, being
dependent on future values of the Company's shares and the timing of employees'
decisions to exercise options and sell the related shares, cannot be estimated.
The Company also does not consider that the liability is probable due to the
income tax disincentives to employees of exercising options and selling the
shares in less than a five year period.
For options granted after the adoption of the new law, the Company has
decided to subject such options to a minimum holding period of the underlying
shares, whereby French optionees will not be allowed to sell or dispose of the
shares before the expiration of a 5-year period from the grant date.
1996 International Employee Stock Purchase Plan. In October 1996, the
shareholders of the Company approved the Company's International Employee Stock
Purchase Plan (the "Purchase Plan") which reserves a total of 150,000 Shares for
issuance thereunder for a period of two years from the date of approval by the
Company's shareholders. The Purchase Plan permits eligible employees to acquire
Shares in the form of ADSs through payroll deductions. The Purchase Plan is
intended to qualify as an "employee stock purchase plan" under Section 423 of
the Code. The Purchase Plan is implemented by consecutive offering periods.
Except for the initial offering, each offering under the Purchase Plan will be
for a period of six months (the "Offering Period") commencing on February 1 and
August 1 of each year. The first Offering Period began on February 14, 1997
being the date on which price quotations for the ADSs corresponding to the
Shares were first available on the Nasdaq National Market and ended on July 31,
1997. The Board of Directors has the power to set the beginning of any Offering
Period and to change the duration of Offering Periods without shareholder
approval, provided that the change is announced at least 15 days prior to the
scheduled beginning of the first Offering Period to be affected. Eligible
employees may select a rate of payroll deduction up to 10% of their
compensation, up to an aggregate total payroll deduction not to exceed $21,250
in any calendar year. The purchase price for ADSs purchased under the Purchase
Plan is 85% of the lesser of the fair market value of the Company's ADSs on the
first day of each applicable Offering Period and on the last day of such
Offering Period.
1996 French Employee Savings Plan. The Company's 1996 French Employee
Savings Plan (the "Savings Plan"), which was approved by the Company's
shareholders in October 1996, reserves a total of 150,000 Shares for issuance
thereunder for a period of two years from the date of such approval. The Savings
Plan permits eligible employees primarily to make contributions for purposes of
purchasing shares in investment funds managed for the Company on behalf of
employees, or to acquire Shares issued by the Company itself. The Savings Plan
is intended to qualify as an Employee Savings Plan under Article 443-1 et. seq.
of the French Labor Code. The Savings Plan is funded by an annual contribution
made on behalf of employees from a special employee profit-sharing reserve, by
voluntary contributions made by employees, by discretionary supplemental
contributions made by the Company, and by the reinvestment of revenues and
capital gains from investments in the Savings Plan prior to distribution. In
accordance with the French Labor Code, voluntary contributions in any one
calendar year for an eligible employee may not exceed 25% of such employee's
gross annual salary. The price for Shares of the Company purchased under the
Savings Plan is 80% of the mean of the fair market value of the Company's ADSs
as quoted on the Nasdaq National Market in the twenty trading days preceding the
Board of Directors' decision to issue Shares to eligible employees under the
Savings Plan. Investments made on behalf of eligible employees may be
distributed on the first day of the fourth month of the fifth fiscal year
following the year in which investment fund shares or Shares of the Company were
purchased. The Savings Plan is automatically renewed each year unless otherwise
terminated by the Company.
-45-
<PAGE> 46
As of August 31, 1997 the Company had issued 10,666 and 8,323 Shares
under the Purchase Plan and Savings Plan, respectively.
ITEM 13. INTEREST OF MANAGEMENT IN CERTAIN TRANSACTIONS
Since July 1, 1994, there has not been, nor is there currently proposed,
any transaction or series of similar transactions to which the Company was or is
to be a party in which the amount involved exceeds $60,000 and in which any
director, executive officer or holder of more than 5% of the share capital of
the Company had or will have a direct or indirect material interest other than
in the transactions described below.
The directors of the Company include (a) a General Partner of an
affiliate of Atlas Venture Europe Fund B.V., (b) the Chief Executive Officer of
Eurocontinental (Managers) Limited, the manager of Eurocontinental Venture S.A.
and (c) a General Partner of Oak Investment Partners, an affiliate of Oak
Management Corporation.
Prior to September 1996, Atlas Venture Europe Fund B.V., Eurocontinental
Ventures S.A., and Oak Management Corporation were directors of the Company. In
transactions between July 1, 1993 and June 30, 1996, Atlas Venture Europe Fund
B.V., Eurocontinental Ventures S.A. and Oak Management Corporation, and
affiliates thereof, purchased an aggregate of 1,834,912 Shares at a weighted
average of FF 18.14 per share, including the conversion of the convertible bonds
held by them and the exercise of rights for the purchase of additional Shares
upon conversion in an aggregate of 1,419,854 Shares.
In March 1995, the Company entered into a co-operation agreement with 02
Technology S.A., and Simulog S.A., with respect to the development of a software
program. Mr. Jean-Francois Abramatic and Mr. Marc Fourrier, currently directors
of the Company, and Mr. Alain Bensoussan, formerly the Chairman and Chief
Executive Officer of the Company, were directors of 02 Technology S.A. at the
time of entering into such agreement, and Mr. Haren, currently the Chairman and
Chief Executive Officer of the Company, was also a director of Simulog at the
time of entering into such agreement.
In June 1995, the Company entered into a research agreement with INRIA
relating to the development of a software program. Mr. Jean-Francois Abramatic,
currently a director of the Company, and Mr. Alain Bensoussan, formerly the
Chairman and Chief Executive Officer of the Company, were directors of INRIA at
the time of entering into such agreement.
In February 1996, the Company entered into an agreement with INRIA with
respect to the porting of ILOG Views on Macintosh/PC in the context of the
implementation of Internet multimedia tools. Also in February 1996, Mr.
Jean-Francois Abramatic, a director of the Company, who is also a director of
INRIA, entered into a consulting agreement with the Company with respect to the
Company's Internet strategy. Pursuant to the agreement, Mr. Abramatic provides
consulting services to the Company one day per month for a period of one year
with a remuneration of FF 7,000 per day.
In January 1997, the Company's U.S. subsidiary extended a loan in the
amount of $75,000 to Mr. Edouard Efira, the Executive Vice President, Business
Development of the Company. The loan yields interest at a rate of 5.63% and is
payable on January 21, 1998.
On August 20, 1997 the Company acquired the business of CPLEX
Optimization, Inc., ("CPLEX") for which it issued 1,700,000 shares, paid
$15,000,000 in cash and issued three promissory notes in an aggregate amount of
$5,000,000 to CPLEX. Of the 1095 outstanding shares of CPLEX, Robert Bixby, a
director of the Company, holds 558; Todd Lowe, a director of the Company, holds
215; and Janet Lowe, the spouse of Todd Lowe, holds 322.
In the context of the acquisition by the Company of the business of
CPLEX on August 20, 1997, the Company issued three promissory notes to CPLEX in
an aggregate principal amount of $5.0 million repayable over four years and
incurring interest at a rate of 6.39% per annum. Following the acquisition the
promissory notes were assigned among Todd Lowe, a director of the Company, for a
principal amount of $981,735, Robert Bixby, a director of the Company,
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<PAGE> 47
for a principal amount of $2,547,945 and Janet Lowe, Marketing Director, CPLEX
Business and spouse of Todd Lowe for a principal amount of $1,470,320.
In the context of the acquisition by the Company of CPLEX, the Company's
subsidiary ILOG, Inc., entered into employment agreements dated August 20, 1997
with each of Todd Lowe, Robert Bixby and Janet Lowe. The Employment Agreement of
each of Todd Lowe, Janet Lowe and Robert Bixby has a three year term. Although
such employment is in each case at will, if the Company terminates any of such
employees' employment other than for cause or if such employee dies or becomes
disabled, then such employee's stock options shall continue to vest and such
employee's salary and bonus will continue to be paid for the employment term.
Mr. Lowe was granted options for the purchase of 200,000 shares and his annual
salary is $150,000 plus a target bonus of $50,000. Janet Lowe was granted
options for the purchase of 200,000 shares and her annual salary is $100,000
plus a target bonus of $30,000. Mr. Bixby was granted options for the purchase
of 400,000 shares and his annual salary is $135,000 plus a bonus to be
determined annually.
In the context of the acquisition by the Company of CPLEX, the Company,
pursuant to a Technology Access Letter granted to Robert Bixby certain continued
access and rights to the CPLEX software and technology including personal access
to the source code for a limited period; the right to request the Company to
grant non-transferable object code licenses to academic institutions for
research promotions; the right to request the Company to grant non-transferable
object code licenses to Rice University with updates; and the right of perpetual
access to the problem test bed (the collection of proprietary problems existing
at the time of termination of Dr. Bixby's employment). Such access and rights
were granted subject to protection of the Company's confidential information and
their being for research and academic purposes only.
The Company believes that the terms of each of the foregoing
transactions were as favorable to the Company as the terms that would have been
available from unaffiliated third parties.
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<PAGE> 48
PART II
ITEM 14. DESCRIPTION OF SECURITIES TO BE REGISTERED
Not applicable.
PART III
ITEM 15. DEFAULTS UPON SENIOR SECURITIES
Not Applicable
ITEM 16. CHANGES IN SECURITIES AND CHANGES IN SECURITY FOR REGISTERED
SECURITIES
Not Applicable
PART IV
ITEM 17. FINANCIAL STATEMENTS
Not Applicable
ITEM 18. FINANCIAL STATEMENTS
See pages F-1 through F-19.
ITEM 19. FINANCIAL STATEMENTS AND EXHIBITS
(A) Financial Statements
The following financial statements and schedules, together with the
report of Ernst & Young LLP thereon, are filed as part of this annual report:
Independent Auditors' Report
Consolidated Balance Sheets
Consolidated Statements of Operations
Consolidated Statements of Shareholders' Equity
Consolidated Statements of Cash Flows
Notes to Consolidated Financial Statements
Schedule II to Financial Statements (Financial statement
schedules I, III, IV and V are omitted as the information is not
required, is not applicable or the information is presented in
the financial statements or related notes thereto)
-48-
<PAGE> 49
(B) Exhibits
<TABLE>
<CAPTION>
EXHIBIT
NUMBER EXHIBITS
- -------- --------------------------------------------------------------------
<S> <C>
1.1 Statuts (charter) of the Company (English translation).*
2.1 Asset Purchase Agreement by and among ILOG S.A., ILOG, Inc., CPLEX
Optimization, Inc., Todd Lowe, Janet Lowe and Robert Bixby dated as
of August 4, 1997.
3.2 Supplemental Deposit Agreement dated as of August 20, 1997.
3.1 Form of Deposit Agreement, dated as of February 13, 1997, among
ILOG, S.A., Morgan Guaranty Trust Company of New York, as
Depositary, and holders from time to time of American Depositary
Shares issued thereunder (including as an exhibit, the form of
American Depositary Receipt).*
4.1 Summary Description of ILOG 1989 Stock Option Plan.*
4.2 Summary Description of ILOG 1992 Stock Option Plan.*
4.3 ILOG 1996 Stock Option Plan.*
4.4 ILOG 1996 International Employee Stock Purchase Plan.*
4.5 ILOG 1996 French Employee Savings Plan (English Translation).*
4.6 INRIA "Le-LISP" version 16 License Agreement between the Registrant
and INRIA dated September 2, 1993 (English summary).*
4.7 Agreement with Sunsoft, Inc. dated March 11, 1996.*
4.8 License Agreement between Thomson -- CSF, System-logiciel and the
Registrant dated January 14, 1991 (English summary).*
4.9 Collaborative Information Technology Research Institute (CITRI)
License Agreement between the Registrant and Royal Melbourne
Institute of Technology, and the University of Melbourne as
participants in CITRI, dated June 24, 1996.*
4.10 Consulting Agreement between the Registrant and Jean-Francois
Abramatic (English summary).*
4.11 Associated Agreement between the Registrant and BULL, S.A. dated
February 9, 1995.*
4.12 Co-operation Agreement between the Registrant and 02, Technology
dated December 1995.*
4.13 Co-operation Agreement between the Registrant and SIMULOG, dated
March 13, 1995.*
4.14 Co-operation Agreement between the Registrant and INRIA dated June
14, 1995.*
4.15 Lease of premises, Gentilly, France (English summary).*
4.16 Lease of premises, Mountain View, CA.*
4.17 Lease of premises, Singapore.*
4.18 Lease of premises, Sophia-Antipolis (English summary).*
4.19 Bank Credit Agreement between the Registrant and Banque Nationale de
Paris dated October 30, 1995 (English Summary).*
4.20 Promissory Note between the Company and CPLEX Optimization, Inc.,
dated August 20, 1997.
4.21 Promissory Note between the Company and CPLEX Optimization, Inc.,
dated August 20, 1997.
4.22 Promissory Note between the Company and CPLEX Optimization, Inc.,
dated August 20, 1997.
4.23 Employment Agreement between ILOG, Inc. and Todd Lowe dated August
20, 1997.
4.24 Employment Agreement between the Company and Janet Lowe dated August
20, 1997.
4.25 Employment Agreement between the Company and Robert Bixby dated
August 20, 1997.
</TABLE>
-49-
<PAGE> 50
<TABLE>
<CAPTION>
EXHIBIT
NUMBER EXHIBITS
- -------- --------------------------------------------------------------------
<S> <C>
4.26 Technology Access Letter between the Company and Robert Bixby dated
August 20, 1997.
11.1 Computation of earnings per share.*
12.1 Subsidiaries of the Company.*
13.1 Consent of Ernst & Young Audit, Independent Auditors.
</TABLE>
- ------------------
* Incorporated by reference to the Registration Statement (Registration
Statement No. 333-6322) on Form F-1 effective on February 13, 1997.
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<PAGE> 51
SIGNATURES
Pursuant to the requirements of Section 12 of the Securities Exchange
Act of 1934, the registrant certifies that it meets all of the requirements for
filing on Form 20-F and has duly caused this annual report to be signed on its
behalf by the undersigned, thereunto duly authorized.
ILOG S.A.
By: /s/ Roger D. Friedberger
------------------------------------
Roger D. Friedberger
Chief Financial Officer
Dated: September 30, 1997
-51-
<PAGE> 52
ILOG S.A.
INDEX TO CONSOLIDATED FINANCIAL STATEMENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
Independent Auditors' Report.............................................. F-2
Consolidated Balance Sheets............................................... F-3
Consolidated Statements of Operations..................................... F-4
Consolidated Statements of Shareholders' Equity........................... F-5
Consolidated Statements of Cash Flows..................................... F-6
Notes to Consolidated Financial Statements................................ F-7
</TABLE>
F-1
<PAGE> 53
INDEPENDENT AUDITORS' REPORT
The Directors ILOG S.A.
We have audited the accompanying consolidated balance sheets of ILOG S.A. and
subsidiaries as of June 30, 1996 and 1997 and the related consolidated
statements of operations, shareholders' equity and cash flows for each of the
three years in the period ended June 30, 1997. These financial statements are
the responsibility of the Company's management. Our responsibility is to express
an opinion on these financial statements based on our audits.
We conducted our audits in accordance with auditing standards generally
accepted in the United States. Those standards require that we plan and perform
the audit to obtain reasonable assurance about whether the financial statements
are free of material misstatement. An audit includes examining, on a test basis,
evidence supporting the amounts and disclosures in the financial statements. An
audit also includes assessing the accounting principles used and significant
estimates made by management, as well as evaluating the overall financial
statement presentation. We believe that our audits provide a reasonable basis
for our opinion.
In our opinion, the consolidated financial statements referred to above
present fairly, in all material respects, the financial position of the Company
and its subsidiaries as of June 30, 1996 and 1997, and the results of their
operations and their cash flows for each of the three years in the period ended
June 30, 1997, in conformity with accounting principles generally accepted in
the United States.
ERNST & YOUNG Audit
/s/ Deborah Choate
----------------------------------------
Represented by
Deborah Choate
Paris, France
July 23, 1997, except for Notes 5 and 11
for which the date is August 20, 1997
<PAGE> 54
ILOG S.A.
CONSOLIDATED BALANCE SHEETS
(IN THOUSANDS EXCEPT SHARE DATA)
<TABLE>
<CAPTION>
June 30,
----------------------
1996 1997
-------- --------
<S> <C> <C>
ASSETS
Current assets:
Cash and cash equivalents ........................ $ 4,977 $ 26,037
Accounts receivable (less allowance for doubtful
accounts of $290 and $273 at June 30, 1996 and
1997, respectively) ............................ 8,453 9,740
Value-added tax collectible on accounts receivable 834 1,016
Research and development grants receivable ....... 916 274
Other receiveables ............................... 436 540
Prepaid expenses ................................. 656 657
-------- --------
Total current assets ..................... 16,272 38,264
Property and equipment ............................. 5,956 6,746
Less accumulated depreciation and amortization ... (3,379) (3,978)
-------- --------
Property and equipment-net ....................... 2,577 2,768
Other assets ....................................... 236 276
-------- --------
Total assets ............................. $ 19,085 $ 41,308
======== ========
LIABILITIES AND SHAREHOLDERS' EQUITY
Current liabilities:
Lines of credit .................................. $ 646 $ 1,300
Accounts payable and accrued expenses ............ 3,755 4,001
Accrued compensation ............................. 2,836 3,066
Value-added tax payable .......................... 919 732
Current portion of interest-free loans ........... 248 362
Current portion of bank loan ..................... 218 --
Current portion of capitalized lease obligations . 455 521
Deferred revenue ................................. 2,136 3,165
-------- --------
Total current liabilities ................ 11,213 13,147
Convertible bonds .................................. 4,272 --
Long-term portion of interest-free loan ............ 1,433 841
Long-term portion of capitalized lease obligations . 574 293
Other long-term liabilities ........................ 357 --
-------- --------
Total liabilities ........................ 17,849 14,281
Commitments and contingencies
Shareholders' equity:
Shares, FF 4.00 nominal value; 6,947,649 and
10,959,622 shares issued and outstanding at
June 30, 1996 and 1997 , respectively .......... 5,024 7,838
Additional paid-in capital ....................... 3,941 30,560
Accumulated deficit .............................. (8,726) (11,349)
Cumulative translation adjustment ................ 997 (22)
-------- --------
Total shareholders' equity ............... 1,236 27,027
-------- --------
Total liabilities and shareholders' equity $ 19,085 $ 41,308
======== ========
</TABLE>
See notes to consolidated financial statements
F-3
<PAGE> 55
ILOG S.A.
CONSOLIDATED STATEMENTS OF OPERATIONS
(IN THOUSANDS EXCEPT SHARE AND PER SHARE DATA)
<TABLE>
<CAPTION>
Year Ended June 30,
---------------------------------------------
1995 1996 1997
----------- ----------- -----------
<S> <C> <C> <C>
Revenues:
License fees .................. $ 12,233 $ 18,848 $ 22,553
Services ...................... 5,523 7,166 10,772
----------- ----------- -----------
17,756 26,014 33,325
Cost of revenues:
License fees .................. 677 1,050 801
Services ...................... 3,615 4,458 5,962
----------- ----------- -----------
4,292 5,508 6,763
----------- ----------- -----------
Gross profit .................... 13,464 20,506 26,562
Operating expenses:
Marketing and selling ......... 7,726 17,227 21,451
Research and development ...... 2,926 4,437 4,566
General and administrative .... 2,842 3,554 4,292
----------- ----------- -----------
Total operating expenses .. 13,494 25,218 30,309
----------- ----------- -----------
Loss from operations ............ (30) (4,712) (3,747)
----------- ----------- -----------
Interest expense ................ (261) (342) (246)
Interest income ................. 110 47 334
Foreign exchange gain (loss) .... (179) 36 2
Other ........................... (22) -- 1,034
----------- ----------- -----------
(352) (259) 1,124
----------- ----------- -----------
Loss before income taxes ........ (382) (4,971) (2,623)
Income taxes .................... -- -- --
----------- ----------- -----------
Net loss ........................ $ (382) $ (4,971) $ (2,623)
=========== =========== ===========
Net loss per share .............. $ (0.06) $ (0.73) $ (0.31)
=========== =========== ===========
Shares and share equivalents used
in per share calculations ....... 6,454,433 6,855,181 8,376,411
=========== =========== ===========
</TABLE>
See notes to consolidated financial statements
F-4
<PAGE> 56
ILOG S.A.
CONSOLIDATED STATEMENTS OF SHAREHOLDERS' EQUITY
(IN THOUSANDS EXCEPT SHARE DATA)
<TABLE>
<CAPTION>
Shares ADDITIONAL CUMULATIVE
--------------------- PAID-IN ACCUMULATED TRANSLATION SHAREHOLDERS'
Shares Amount CAPITAL DEFICIT ADJUSTMENT EQUITY
---------- ------ ------- ----------- ----------- -------------
<S> <C> <C> <C> <C> <C> <C> <C>
Balance July 1, 1994............................ 5,428,213 $3,868 $ (251) $ (3,373) $ 605 $ 849
Options exercised............................. 78,125 58 12 70
Conversion of bonds........................... 400,000 299 450 749
Issuance of shares............................ 293,358 220 716 936
Amortization of deferred stock compensation... 56 56
Translation adjustment........................ 188 188
Net loss...................................... (382) (382)
---------- ------ ------- -------- ------- -------
Balance June 30, 1995........................... 6,199,695 4,445 983 (3,755) 793 2,466
Options exercised............................. 116,377 90 7 97
Issuance of shares............................ 631,577 489 2,810 3,299
Amortization of deferred stock compensation... 141 141
Translation adjustment........................ 204 204
Net loss...................................... (4,971) (4,971)
---------- ------ ------- -------- ------- -------
Balance June 30, 1996........................... 6,947,649 5,024 3,941 (8,726) 997 1,236
Options exercised............................. 44,587 31 80 111
Conversion of bonds........................... 1,329,986 933 3,355 4,288
Issuance of shares............................ 2,637,400 1,850 23,089 24,939
Amortization of deferred stock compensation... 95 95
Translation adjustment........................ (1,019) (1,019)
Net loss...................................... (2,623) (2,623)
---------- ------ ------- -------- ------- -------
Balance June 30, 1997........................... 10,959,622 $7,838 $30,560 $(11,$49) $ (22) $27,027
========== ====== ======= ======== ======= =======
</TABLE>
See notes to consolidated financial statements
F-5
<PAGE> 57
ILOG S.A.
CONSOLIDATED STATEMENTS OF CASH FLOWS
(IN THOUSANDS EXCEPT SHARE DATA)
<TABLE>
<CAPTION>
YEAR ENDED JUNE 30,
----------------------------------
1995 1996 1997
------- ------- --------
<S> <C> <C> <C>
Cash flows from operating activities:
Net loss ................................................... $ (382) $(4,971) $ (2,623)
Adjustments to reconcile net loss to net cash used for
operating activities:
Depreciation and amortization of property and equipment .. 474 1,053 933
Loss (gain) on sales of fixed assets ..................... 21 120 (5)
Increase (decrease) in cash from:
Accounts receivable ................................... (312) (3,988) (1,990)
Value-added tax collectible on accounts receivable .... (168) (153) (182)
Research and development grants receivable ............ (497) 1 642
Other receivables ..................................... 355 393 382
Prepaid expenses ...................................... 521 (86) (192)
Accounts payable and accrued expenses ................. 588 1,799 396
Accrued compensation .................................. 57 1,124 484
Deferred revenue ...................................... (892) 749 1,010
Value-added tax payable ............................... 74 280 (114)
Other ................................................. 66 89 (117)
------- ------- --------
Net cash used for operating activities ........... (95) (3,590) (1,376)
------- ------- --------
Cash flows from investing activities:
Purchases of property and equipment ................... (732) (1,500) (1,124)
Proceeds from sale of property and equipment .......... 7 2 --
------- ------- --------
Net cash used for investing activities ........... (725) (1,498) (1,124)
------- ------- --------
Cash flows from financing activities:
Proceeds from loans ...................................... 799 1,143 768
Repayment of loans ....................................... (903) (174) (810)
Principal payments on capital lease obligations .......... (252) (391) (516)
Proceeds from convertible bonds .......................... 4,242 -- --
Cash proceeds from sale of shares ........................ 1,006 3,396 25,050
------- ------- --------
Net cash provided by financing activities ........ 4,892 3,974 24,492
------- ------- --------
Effect of exchange rate changes on cash and cash equivalents (188) 945 (930)
------- ------- --------
Net increase (decrease) in cash and cash equivalents ....... 3,884 (169) 21,060
Cash and cash equivalents, beginning of period ............ 1,262 5,146 4,977
------- ------- --------
Cash and cash equivalents, end of period .................. $ 5,146 $ 4,977 $ 26,037
======= ======= ========
</TABLE>
See notes to consolidated financial statements
F-6
<PAGE> 58
ILOG S.A.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
1. NATURE OF BUSINESS AND SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
Nature of business
ILOG S.A. (the "Company") is organized as a societe anonyme, or limited
liability company, under the laws of the Republic of France. The Company was
founded in 1987.
The Company develops, markets and supports advanced software class
libraries for user interface, resource optimization and data services functions
that are fundamental to the development of strategic business applications. The
Company's object oriented libraries are used in all development stages, from
conceptual modeling to final delivery, of C, C++ and Java compiled applications.
The Company's products are distributed through its direct sales force as well as
by distributors, ISVs, and VARs.
Basis of presentation and principles of consolidation
The accompanying consolidated financial statements were prepared in
accordance with accounting principles generally accepted in the United States.
The preparation of financial statements requires management to make estimates
and assumptions that affect the amounts reported in the financial statements and
accompanying footnotes. Actual results could differ from those estimates.
The accompanying consolidated financial statements include the Company
and its subsidiaries in the United States, Singapore, the United Kingdom, Spain
and Germany after eliminating intercompany accounts and transactions.
Foreign currency translation
The reporting currency of the Company and its subsidiaries is the United
States dollar.
In accordance with Statement of Financial Accounting Standards No. 52,
all assets and liabilities in the balance sheets of entities whose functional
currency, which generally is the local currency, is other than the United States
dollar are translated into dollar equivalents at exchange rates as follows: (1)
asset and liability accounts at year-end rates, (2) income statement accounts at
weighted average exchange rates for the year, and (3) shareholders' equity
accounts at historical exchange rates.
Translation gains or losses are recorded in shareholders' equity and
transaction gains and losses are reflected in net loss. The Company has not
undertaken hedging transactions to cover its currency translation exposure.
Revenue recognition
The Company recognizes revenue in accordance with the American Institute
of Certified Public Accountants' Statement of Position 91-1 on software revenue
recognition.
License fees are earned under software license agreements with end users
and distributors and are recognized upon shipment if no significant vendor
obligations remain and collection of the resulting receivable is deemed
probable.
Service revenues are derived from consulting and training services and
fees earned under annual maintenance agreements for providing updates, on an "if
and when available" basis, for existing software products, user documentation
and technical support. Maintenance revenue is recognized ratably over the term
of such agreements. If such services are included in the initial licensing fee,
the value of the services is unbundled and recognized ratably over the related
service period.
F-7
<PAGE> 59
Concentration of risk
Financial instruments that potentially subject the Company to
concentrations of credit risk consist principally of cash and cash equivalents
and trade receivables.
The Company has cash investment policies that limit investments to
short-term low risk instruments. The Company's cash is held principally in
French francs and concentrated primarily in one major French bank.
The Company sells its products to customers in a variety of industries
in Europe, North America and Asia. The Company performs ongoing credit
evaluations of its customers and maintains allowances for potential credit
losses. To date, such losses have been within management's expectations. The
Company generally requires no collateral, but does request letters of credit as
collateral in certain circumstances.
Cash equivalents and investments
The Company considers all highly liquid investments with insignificant
interest risk and purchased with an original maturity of three months or less to
be cash equivalents; cash equivalents include marketable securities which are
principally money market funds certificates of deposits, and commercial paper.
The cost associated with such securities approximates fair market value.
Effective in January 1994, the Company adopted Statement of Financial
Accounting Standards No. 115, "Accounting for Certain Investments in Debt and
Equity Securities" (SFAS 115) which creates certain classification categories
for such investments, based on the nature of the securities and the intent and
investment goals of the Company. The cumulative effect as of January 1, 1994 of
adopting SFAS 115 is considered to be immaterial.
Under SFAS 115, investments are classified as held-to-maturity or
available-for-sale at the time of purchase and periodically such designation is
reevaluated. Held-to-maturity securities are stated at amortized cost with
corresponding premium or discounts amortized over the life of the investment to
interest income. Debt securities not classified as held-to-maturity are
classified as available-for-sale and are reported at fair value. Unrecognized
gain or losses on available-for-sale securities are included, net of tax, in
equity until their disposition. Realized gains and losses and decline in value
judged to be other-than-temporary on available-for-sale securities are included
in interest income.
The cost of securities sold is based on the specific identification method.
Fair value of financial instruments
At June 30, 1996 and 1997, the carrying values of current financial
instruments such as cash, accounts receivable, accounts payable, other
receivables, accrued liabilities and the current portion of long-term debt
approximated their market values, based on the short-term maturities of these
instruments. At June 30, 1996 and 1997, the fair value of long-term debt was
$6,859,000 and $777,000 respectively, compared to book values of $5,705,000 and
$841,000 respectively. Fair value is determined based on expected future cash
flows, discounted at market interest rates, and other appropriate valuation
methodologies.
Net loss per share
Primary net loss per share amounts are computed using the weighted
average number of shares and equivalent shares from stock options (using the
treasury stock method). Equivalent shares are excluded from the computation if
their effect is anti-dilutive except that, pursuant to the Securities and
Exchange Commission Staff Accounting Bulletins, shares and equivalent shares
issued by the Company at prices below the initial public offering price during
the twelve-month period prior to the initial public offering date have been
included in the calculation as if they were outstanding for all periods prior to
the offering date (using the treasury stock method and the assumed initial
public offering price).
The computation of fully diluted net loss per share, which takes into
consideration the potential dilutive effect of convertible debt, was
antidilutive in each of the periods presented; therefore, only primary earnings
per share is presented. None of the convertible debt issuances has been
considered as common stock equivalents as the effective
F-8
<PAGE> 60
yield of such convertible debt on the date of issuance exceeded 66 2/3% of the
then current average Aa corporate bond yield.
All share and per share amounts have been restated to reflect a 5-for-2
stock split that took place in December 1995.
In February 1997, the Financial Accounting Standards Board issued
Statement No. 128, Earnings per Share, which is required to be adopted on
December 31, 1997. At that time, the Company will be required to change the
method currently used to compute earnings per share and to restate all prior
periods. Under the new requirements for calculating primary earnings per share,
the dilutive effect of stock options will be excluded. The impact is not
expected to result in any change in primary earnings per share for the years
ended June 30, 1997 and June 30, 1996 since losses have been reported in both
periods and stock options were excluded from the calculation as described above.
Property and equipment
Property and equipment is stated at cost. Depreciation and amortization
are computed using the straight-line method over the following estimated useful
lives:
<TABLE>
<S> <C>
Computer equipment and purchased software...... 1-3 years
Furniture and other equipment.................. 4-8 years
Leasehold improvements......................... 10 years, or lease term if less
</TABLE>
Amortization of capitalized leased equipment is included in depreciation
expense.
In 1996, the Financial Accounting Standards Board issued Statement of
Financial Accounting Standards No. 121 ("SFAS 121"), "Accounting for the
Impairment of Long-Lived Assets and for Long-Lived Assets to be Disposed of"
SFAS 121 requires recognition of impairment of long-lived assets in the event
the net book value of such assets exceeds the future undiscounted cash flows
attributable to such assets. SFAS 121 is effective for fiscal years beginning
after December 15, 1996. The impact of the adoption of SFAS 121 was not material
to the Company's financial position or results of operations.
Software development costs
In accordance with Statement of Financial Accounting Standards No. 86,
"Accounting for the Costs of Computer Software to be Sold, Leased or Otherwise
Marketed", the Company capitalizes eligible computer software costs upon
achievement of technological feasibility subject to net realizable value
considerations. The establishment of technological feasibility and the ongoing
assessment of the recoverability of these costs require management's judgment
with respect to certain external factors, including, but not limited to,
anticipated future gross license revenues, estimated economic life and changes
in software and hardware technology. As of June 30, 1996 and 1997, such
capitalizable costs were insignificant. Accordingly, the Company has not
capitalized such costs but has charged all such costs to research and
development expense in the accompanying statements of operations.
Research and development grants
The Company receives financial support for various research projects
from public institutions. Such support is recorded as a reduction of research
and development expenses in the periods when the projects are undertaken, the
related expenses have been incurred and the funding has been definitively
acquired. Financial support of $2,321,000, $2,549,000, $388,000 received in the
years ended June 30, 1995, 1996 and 1997, has been recorded as reductions to the
related research and development expenses in each such year.
Income taxes
In accordance with Statement of Financial Accounting Standards No. 109,
the liability method is used in accounting for income taxes. Under this method,
deferred tax assets and liabilities are determined based on differences
F-9
<PAGE> 61
between financial reporting and tax bases of assets and liabilities and are
measured using the enacted tax rates and laws that will be in effect when the
differences are expected to reverse. A valuation allowance is established if,
based on the weight of available evidence, it is more likely than not that some
portion or all of the deferred tax asset will not be realized.
Employee stock option plans
The Company accounts for its stock option plans in accordance with the
provisions of Accounting Principles Board Opinion No. 25 ("APB 25"), "Accounting
for Stock Issued to Employees". In 1995, the Financial Accounting Standards
Board issued Statement of Financial Accounting Standards No. 123 ("SFAS 123"),
"Accounting for Stock Based Compensation". SFAS 123 provides an alternative to
APB 25 and is effective for fiscal years beginning after December 15, 1995. As
permitted by SFAS 123, the Company has elected to continue to account for its
employee stock option plans in accordance with the provisions of APB 25 and to
adopt only the disclosure provisions of SFAS 123. Accordingly, adoption of SFAS
123 in the year ended June 30, 1997 did not have any material impact on the
results of operations or the financial position of the Company.
2. CASH AND CASH EQUIVALENTS
Cash and cash equivalents, all of which are classified as
available-for-sale securities, include:
<TABLE>
<CAPTION>
JUNE 30,
------------------
1996 1997
------ -------
(IN THOUSANDS)
<S> <C> <C>
Cash held at bank......................................... $4,832 $ 1,617
Cash equivalents.......................................... 145 24,420
------ -------
$4,977 $26,037
====== =======
</TABLE>
Gross realized gains and losses on sales of available-for-sale
securities during 1995, 1996 and 1997 were immaterial. There was no unrealized
gain or loss at June 30, 1996 or 1997.
As of June 30, 1996 and 1997 all cash equivalents have contractual
maturities of less than one year.
3. PROPERTY AND EQUIPMENT
Property and equipment includes:
<TABLE>
<CAPTION>
JUNE 30,
-------------------
1996 1997
------- -------
(IN THOUSANDS)
<S> <C> <C>
Computer equipment and purchased software............... $ 4,636 $ 5,035
Furniture and other equipment........................... 1,250 1,658
Leasehold improvements.................................. 70 53
------- -------
5,956 6,746
Accumulated depreciation and amortization............... (3,379) (3,978)
------- -------
$ 2,577 $ 2,768
======= =======
</TABLE>
Equipment purchased under capital leases in the years ended June 30,
1996 and 1997 totaled $636,000 and $393,000, respectively. The cost of such
equipment included in property and equipment at June 30, 1996 and 1997 totaled
$2,667,000, and $2,447,000, respectively. Accumulated amortization of this
equipment totaled $1,600,000 and $1,570,000 at June 30, 1996 and 1997,
respectively.
F-10
<PAGE> 62
4. DEBT
The following table presents a summary of the Company's debt:
<TABLE>
<CAPTION>
JUNE 30,
-----------------
1996 1997
------ ------
(IN THOUSANDS)
<S> <C> <C>
SHORT-TERM DEBT:
Lines of credit ....................................... $ 646 $1,300
Current portion of interest-free loans from French
government agencies, denominated in French francs ... 248 362
Current portion of bank loan, bearing interest at 9.0%,
payable in installments through 1997,
denominated in French francs ....................... 218 --
Current portion of capital lease obligation ........... 455 521
LONG-TERM DEBT:
Convertible bonds, denominated in French francs ....... $4,272 $ --
Long-term portion of interest-free loans from French
government agencies, denominated in French francs ... 1,433 841
Long-term portion of capital lease obligation ......... 574 293
------ ------
Total long-term debt, less current portion ............ $6,279 $1,134
====== ======
</TABLE>
The Company has lines of credit with a French bank allowing for a
maximum borrowing of FF 20,000,000 (approximated $3,400,000) at June 30, 1997.
The lines of credit bear interest at the Paris Interbank Offering Rate plus 1.5%
which corresponded to effective rates of 5.3% and 4.9% at June 30, 1996 and
1997, respectively. The amounts outstanding under these lines at June 30, 1997
were denominated in French francs, U.S. dollars, pounds sterling, Singapore
dollars and Spanish pesetas.
In December 1994, the Company issued convertible bonds for FF 22,000,000
which were convertible at the holders' option into 1,290,776 shares at any time
during the five-year term of the debt. The debt earned interest at 5.5% per
year, payable upon repayment of the debt or at the conversion date. The related
accrued interest at June 30, 1995 and 1996 is included in other long-term
liabilities. These bonds and related accrued interest were converted into shares
at the time of the Company's initial public offering in February 1997.
The Company has received interest-free loans from Anvar, an agency of
the French government that provides financing to French companies for research
and development, and the French Ministry of Trade and Industry. Repayment of the
loans, except for a required minimum payment of $291,000 which is due in March
1998, is contingent upon the technical and commercial success of the research
programs to which they relate.
Future payments of long-term debt, excluding capitalized lease
obligations, for the years ending June 30 are as follows (in thousands):
<TABLE>
<S> <C>
1998 $362
1999 340
2000 367
2001 107
2002 0
Thereafter 27
</TABLE>
F-11
<PAGE> 63
Future minimum lease payments under capitalized lease obligations due
for the years ending June 30 are as follows (in thousands):
<TABLE>
<S> <C>
1998............................................. $ 558
1999............................................. 217
2000............................................. 86
------
Total minimum lease payments..................... 861
Less amount representing interest................ (47)
------
Present value of net minimum lease payments...... 814
Less current portion............................. (521)
------
Long-term portion................................ $ 293
======
</TABLE>
Interest paid in the years ended June 30, 1995, 1996 and 1997 totaled
$524,000, $529,000 and $548,000 respectively.
5. SHAREHOLDERS' EQUITY
General
At June 30 1997, the issued and outstanding share capital of the Company
consisted of 10,959,622 shares with a nominal value of FF 4.00.
In February 1997, the Company issued 2,500,000 shares at $11.00 per
share in connection with its initial public offering in the United States.
Simultaneously with this offering, holders of convertible bonds described in
Note 4 elected to convert the bonds and accrued interest thereon into 1,329,986
shares and to exercise their rights to purchase 129,077 additional shares, as
described below.
In June 1996, 631,577 shares were issued in a rights offering for cash
of FF27.00 ($5.22) per share, resulting in total proceeds of $3,299,000. As a
result of the rights offering, holders of convertible bonds obtained the right
to purchase an additional 129,077 shares in the event of conversion of the
bonds.
In November 1994, 293,358 shares were issued for cash of FF17.00 ($3.19)
per share, resulting in total proceeds of $936,000. In December 1994, 400,000
shares were issued upon conversion of $749,000 in convertible bonds.
Preemptive subscription rights
Shareholders have preemptive rights to subscribe on a pro rata basis for
additional shares issued by the Company for cash. Shareholders may waive such
preemptive subscription rights at an extraordinary general meeting of
shareholders under certain circumstances. Preemptive subscription rights, if not
previously waived, are transferable during the subscription period relating to a
particular offer of shares.
Dividend rights
Dividends may be distributed from the statutory retained earnings,
subject to the requirements of French law and the Company's statuts. The Company
has not distributed any dividends since its inception and had no distributable
retained earnings at June 30, 1997. The accumulated deficit for statutory
purposes totaled $2,900,000 at June 30, 1997.
Dividend distributions, if any, will be made in French francs.
Stock options
Stock options have been granted to employees under the Company's 1987,
1989, 1992, 1994 and 1996 stock option plans. Generally, options vest over four
years from, and expire between five to ten years after, the date of hire or
grant. Differences between the exercise price of the options and the estimated
fair value of the underlying shares are recorded as compensation expense and
amortized over the vesting period, and result in an increase in additional
paid-in capital being recorded as the expense is recognized. During the years
ended June 30, 1995, 1996 and 1997, the Company
F-12
<PAGE> 64
recorded compensation expense related to options of $56,000, $141,000 and
$95,000, respectively. The Company will record an aggregate compensation expense
of approximately $300,000 over the related vesting period of these options in
future years.
A summary of activity under the option plans is as follows:
<TABLE>
<CAPTION>
SHARES OPTIONS WEIGHTED AVERAGE WEIGHTED AVERAGE
RESERVED FOR GRANTED AND Exercise Price in Exercise Price in
FUTURE GRANTS OUTSTANDING French Francs U.S. Dollars
----------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Balances at July 1, 1994 364,638 349,925 3.24 0.59
Options authorized .... 500,000 -- -- --
Options granted ....... (584,000) 584,000 9.81 1.89
Options exercised ..... -- (78,125) 4.66 0.90
Options canceled ...... 6,875 (6,875) 9.00 1.74
-------- ---------- ----- ----
Balances at June 30, 1995 287,513 848,925 8.00 1.54
Options authorized .... 600,000 -- -- --
Options granted ....... (417,531) 417,531 18.93 3.77
Options exercised ..... -- (116,377) 4.17 0.83
Options canceled ...... 176,688 (176,688) 9.5 1.89
-------- ---------- ----- ----
Balances at June 30, 1996 646,670 973,391 13.13 2.62
Options authorized .... 200,000 -- -- --
Options granted ....... (397,385) 397,385 31.60 5.80
Options ............... -- (44,587) 13.63 2.50
Options canceled ...... 42,185 (42,185) 22.54 4.14
-------- ---------- ----- ----
Balances at June 30, 1997 491,470 1,284,004 18.88 3.46
======== ========== ===== ====
</TABLE>
At June 30, 1995, 1996 and 1997, 150,000, 175,845 and 335,514,
respectively, of the foregoing options were exercisable at weighted average
exercise prices of FF 8.00 ($1.54), FF 7.21 ($1.44) and FF 10.20 ($1.87),
respectively. Exercise prices for options outstanding as of June 30, 1997 ranged
from FF 1.16 to FF 35.00 ($0.20 to $6.47). The weighted average remaining
contractual life of those options is 6.6 years.
On August 20, 1997 the number of shares reserved for option grants was
increased by 1,600,000 shares, of which 1,100,000 were granted on that date at
an exercise price of FF36.84 ($5.94).
The Company has elected to follow APB 25 in accounting for its employee
stock options because, as discussed below, the alternative fair value accounting
provided for under SFAS 123 requires the use of option valuation models that
were not developed for use in valuing employee stock options. Under APB 25, when
the exercise price of the Company's employee stock options is less than the
market price of the underlying shares of the date of grant, compensation expense
is recognized.
Pro forma information regarding net income and earnings per share is
required by SFAS 123, and has been determined as if Company had accounted for
its employee stock options under the fair value method of SFAS 123. The fair
value for these options was estimated at the date of grant using a Black-Scholes
option pricing model with the following average assumptions for 1997 and 1996,
respectively: risk-free interest rates of 4%, dividend yield of 0%; volatility
factors of the expected market price of the Company's ordinary shares of .47;
and a weighted-average expected life of the option of 5 years.
The Black-Scholes option valuation model was developed for use in
estimating the fair value of traded options which have no vesting restrictions
and are fully transferable. In addition, option valuation models require the
input of highly subjective assumptions including the expected stock price
volatility. Because the Company's employee stock options have characteristics
significantly different from those of traded options, and because the changes in
the subjective
F-13
<PAGE> 65
input assumptions can materially affect the fair value estimate, in management's
opinion, the existing models do not necessarily provide a reliable single
measure of the fair value of its employee stock options.
For purposes of pro forma disclosures, the estimated fair value of the
options is expensed over the vesting period of the options. The Company's pro
forma information follows (in thousands except for loss per share information):
<TABLE>
<CAPTION>
1996 1997
- -----------------------------------------------------------------------------------------
<S> <C> <C>
Pro forma net loss $(4,920) $(3,428)
Pro forma loss per share $ (0.72) $ (0.41)
- -----------------------------------------------------------------------------------------
</TABLE>
The weighted-average fair value of options granted during 1997 and 1996
was as follows:
<TABLE>
<CAPTION>
1996 1997
- ----------------------------------------------------------------------------------------
<S> <C> <C>
Options whose exercise price equaled market price of the
underlying shares on the grant date $3.42 $4.95
Options whose exercise price was less than the market
price of the underlying shares on the grant date $4.92 $3.30
- ----------------------------------------------------------------------------------------
</TABLE>
In December 1996, the French parliament adopted a law that requires
French companies to pay French social contributions and certain salary-based
taxes, which may represent, for the Company, approximately 45% of the taxable
salary, on the difference between the exercise price of a stock option and the
fair market value of the underlying shares on the exercise date if the
beneficiary disposes of the shares before a five-year period following the grant
of the option. The new law is consistent with personal income tax law that
requires individuals to pay income tax on the difference between the option
exercise price and the fair value of the shares at the grant date if the shares
are sold or otherwise disposed of within five years of the option grant. The law
applies to all options exercised after January 1, 1997 by persons whose salary
is subject to French social contribution.
The Company has not recorded a liability for social charges which may be
assessed for options granted as of June 30, 1997 as any liability, being
dependent on future trading values of the Company's shares and the timing of
optionees' decisions to exercise options and sell the related shares, cannot be
estimated.
Employee Stock Purchase Plan
In March 1997, the Company implemented the 1996 International Employee
Stock Purchase Plan and the 1996 French Employee Savings Plan, as authorized by
the shareholders in October 1996. Up to 150,000 per Plan have been reserved for
issuance to employees pursuant to the terms of these Plans, of which 8,323 were
issued under the 1996 French Employee Savings Plan during the year ended June
30, 1997.
6. INCOME TAXES
For financial reporting purposes, income (loss) before income taxes
(benefit) includes the following components:
<TABLE>
<CAPTION>
YEAR ENDED JUNE 30,
-----------------------------------
1995 1996 1997
------- ------- -------
(IN THOUSANDS)
<S> <C> <C> <C>
France................................... $ 1,522 $(1,756) $ 952
United States............................ (1,594) (1,545) (2,622)
Rest of the world........................ (310) (1,670) (953)
------- ------- -------
Total................................. $ (382) $(4,971) $(2,623)
======= ======= =======
</TABLE>
Due to the Company's loss position in all countries, no current income
tax has been recorded.
F-14
<PAGE> 66
A reconciliation of income taxes computed at the French statutory rate
(36.7%) to the income tax benefit is as follows:
<TABLE>
<CAPTION>
YEAR ENDED JUNE 30,
-----------------------------
1995 1996 1997
------ ------- -----
(IN THOUSANDS)
<S> <C> <C> <C>
Income tax expense (benefit) computed at the French
statutory rate.................................... $ (140) $(1,822) $(956)
Operating losses not utilized....................... 698 1,822 956
Use of operating losses whose benefits were not
previously recognized............................. (558) -- --
------ ------- -----
Total income taxes............................ $ -- $ -- $ --
====== ======= =====
</TABLE>
Significant components of the Company's deferred tax assets and
liabilities consist of the following:
<TABLE>
<CAPTION>
JUNE 30,
------------------
1996 1997
------- -------
(IN THOUSANDS)
<S> <C> <C>
Deferred tax assets:
Net operating loss carryforwards....................... $ 3,467 $ 4,300
Provisions and accruals not currently deductible....... 493 116
Other.................................................. 223 501
------- -------
4,183 4,917
Valuation allowance...................................... (4,183) (4,917)
------- -------
Net deferred taxes....................................... $ -- $ --
======= =======
</TABLE>
Due to its history of losses, the Company does not believe that
sufficient objective, positive evidence exists to conclude that recoverability
of its net deferred tax assets is more likely than not. Consequently, the
Company has provided valuation allowances covering 100% of its net deferred tax
assets.
As of June 30, 1997, the Company had French net operating loss
carryforwards of approximately $2,133,000, of which $1,359,000 have no
expiration date. The remaining $774,000 of net operating loss carryforwards, if
not utilized, will expire in the year 2001. The Company has U.S. net operating
loss carryforwards for federal and state tax purposes of approximately
$7,000,000 and $3,000,000, respectively, that expire in the years 1999 through
2012. The Company has U.K. net operating losses of approximately $1,400,000
which have no expiration date. The Company also has net operating loss
carryforwards totaling approximately $1,400,000 in various other jurisdictions.
The utilization of these net operating loss carryforwards is limited to
the future operations of the Company in the tax jurisdictions in which such
carryforwards arose.
7. EMPLOYEE RETIREMENT PLANS
The Company contributes to pensions for personnel in France in
accordance with French law by contributing based on salaries to the relevant
government agencies. There exists no actuarial liability in connection with
these plans. French law also requires payment of a lump sum retirement indemnity
to employees based upon years of service and compensation at retirement.
Benefits do not vest prior to retirement. The Company's obligation at June 30,
1996 and 1997 was immaterial.
F-15
<PAGE> 67
8. OPERATING LEASE COMMITMENTS
The Company leases its facilities and certain equipment under operating
leases that expire through 2004. Future minimum lease payments under operating
leases due for the fiscal years ending June 30 are as follows (in thousands):
<TABLE>
<S> <C>
1998............................................... $1,423
1999............................................... 1,156
2000............................................... 854
2001............................................... 854
2002 and thereafter................................ 2,589
</TABLE>
Rental expense for the years ended June 30, 1995, 1996 and 1997 was
approximately $956,000, $1,479,000 and $1,329,000, respectively.
9. OTHER INCOME (EXPENSE)
During the year ended June 30, 1997, the Company received a $1,096,000
grant from an agency of the French government related to the Company's
establishment of subsidiaries outside of France which has been recorded in Other
income (expense).
F-16
<PAGE> 68
10. INDUSTRY AND GEOGRAPHIC INFORMATION
The Company and its subsidiaries operate in one industry segment: the
development, marketing and support of advanced software class libraries for
certain user interface, resource optimization and data services functions that
are fundamental to the development of strategic business applications.
Information about the Company's operations by geographic area is as
follows (in thousands):
<TABLE>
<CAPTION>
Europe,
United excluding
France States Asia France Elimination Consolidated
------ ------ ---- ------ ----------- ------------
<S> <C> <C> <C> <C> <C> <C>
1995
Net revenues:
Customers ................... $ 10,566 $ 3,210 $ 1,920 $ 2,060 -- $ 17,756
Intercompany ................ 2,597 -- -- -- $ (2,597) --
13,163 3,210 1,920 2,060 (2,597) 17,756
Operating income (loss) ..... 1,760 (1,590) 136 (336) -- (30)
Identifiable assets ......... 19,371 1,329 1,150 1,378 (7,605) 15,623
Capital expenditures ........ 435 150 128 19 -- 732
Depreciation and amortization (444) (11) (9) (11) -- (474)
1996
Net revenues:
Customers ................... 12,780 7,423 2,419 3,392 -- 26,014
Intercompany ................ 3,565 -- -- -- (3,565) --
16,345 7,423 2,419 3,392 (3,565) 26,014
Operating loss .............. (1,567) (1,508) (396) (1,241) -- (4,712)
Identifiable assets ......... 23,190 4,332 1,655 3,306 (13,398) 19,085
Capital expenditures ........ 349 507 7 637 -- 1,500
Depreciation and amortization (778) (130) (49) (96) -- (1,053)
1997
Net revenues:
Customers ................... 11,996 9,882 3,266 8,181 -- 33,325
Intercompany ................ 4,371 (4,371) --
16,367 9,882 3,266 8,181 (4,371) 33,325
Operating loss .............. (374) (2,489) (797) (87) (3,747)
Identifiable assets ......... 46,487 4,528 2,022 3,261 (14,990) 41,308
Capital expenditures ........ 107 442 486 89 -- 1,124
Depreciation and amortization (337) (288) (111) (197) -- (933)
</TABLE>
Intercompany sales between geographic regions are accounted for at cost
plus a gross margin.
11. SUBSEQUENT EVENT
On August 20, 1997, the Company acquired the business of CPLEX
Optimization, Inc. in exchange for 1,700,000 shares of the Company, $15,000,000
in cash and four-year promissory notes totaling $5,000,000. This transaction is
being accounted for as a purchase.
F-17
<PAGE> 69
SCHEDULE II--VALUATION AND QUALIFYING ACCOUNTS
ILOG S.A.
<TABLE>
<CAPTION>
COL. A COL.B COL.C COL. D COL. E
- -----------------------------------------------------------------------------------------------------------------
Additional
- -----------------------------------------------------------------------------------------------------------------
Charged to
Balance at Charged to Other
Description Beginning Costs and Accounts-- Deductions-- Balance at End
of Period Expenses Describe Describe of Period
- -----------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
YEAR ENDED JUNE 30, 1995:
Reserves and allowances deducted
from asset accounts:
Allowance for doubtful accounts $36,000 $3,000 $39,000
YEAR ENDED JUNE 30, 1996:
Reserves and allowances deducted
from asset accounts:
Allowance for doubtful accounts $39,000 $251,000 $290,000
YEAR ENDED JUNE 30, 1997:
Reserves and allowances deducted
from asset accounts:
Allowance for doubtful accounts $290,000 $ 27,000 $ 44,000 $273,000
</TABLE>
F-18
<PAGE> 70
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER EXHIBITS
- -------- --------------------------------------------------------------------
<S> <C>
1.1 Statuts (charter) of the Company (English translation).*
2.1 Asset Purchase Agreement by and among ILOG S.A., ILOG, Inc., CPLEX
Optimization, Inc., Todd Lowe, Janet Lowe and Robert Bixby dated as
of August 4, 1997.
3.2 Supplemental Deposit Agreement dated as of August 20, 1997.
3.1 Form of Deposit Agreement, dated as of February 13, 1997, among
ILOG, S.A., Morgan Guaranty Trust Company of New York, as
Depositary, and holders from time to time of American Depositary
Shares issued thereunder (including as an exhibit, the form of
American Depositary Receipt).*
4.1 Summary Description of ILOG 1989 Stock Option Plan.*
4.2 Summary Description of ILOG 1992 Stock Option Plan.*
4.3 ILOG 1996 Stock Option Plan.*
4.4 ILOG 1996 International Employee Stock Purchase Plan.*
4.5 ILOG 1996 French Employee Savings Plan (English Translation).*
4.6 INRIA "Le-LISP" version 16 License Agreement between the Registrant
and INRIA dated September 2, 1993 (English summary).*
4.7 Agreement with Sunsoft, Inc. dated March 11, 1996.*
4.8 License Agreement between Thomson -- CSF, System-logiciel and the
Registrant dated January 14, 1991 (English summary).*
4.9 Collaborative Information Technology Research Institute (CITRI)
License Agreement between the Registrant and Royal Melbourne
Institute of Technology, and the University of Melbourne as
participants in CITRI, dated June 24, 1996.*
4.10 Consulting Agreement between the Registrant and Jean-Francois
Abramatic (English summary).*
4.11 Associated Agreement between the Registrant and BULL, S.A. dated
February 9, 1995.*
4.12 Co-operation Agreement between the Registrant and 02, Technology
dated December 1995.*
4.13 Co-operation Agreement between the Registrant and SIMULOG, dated
March 13, 1995.*
4.14 Co-operation Agreement between the Registrant and INRIA dated June
14, 1995.*
4.15 Lease of premises, Gentilly, France (English summary).*
4.16 Lease of premises, Mountain View, CA.*
4.17 Lease of premises, Singapore.*
4.18 Lease of premises, Sophia-Antipolis (English summary).*
4.19 Bank Credit Agreement between the Registrant and Banque Nationale de
Paris dated October 30, 1995 (English Summary).*
4.20 Promissory Note between the Company and CPLEX Optimization, Inc.,
dated August 20, 1997.
4.21 Promissory Note between the Company and CPLEX Optimization, Inc.,
dated August 20, 1997.
4.22 Promissory Note between the Company and CPLEX Optimization, Inc.,
dated August 20, 1997.
4.23 Employment Agreement between ILOG, Inc. and Todd Lowe dated August
20, 1997.
4.24 Employment Agreement between the Company and Janet Lowe dated August
20, 1997.
4.25 Employment Agreement between the Company and Robert Bixby dated
August 20, 1997.
</TABLE>
<PAGE> 71
<TABLE>
<CAPTION>
EXHIBIT
NUMBER EXHIBITS
- -------- --------------------------------------------------------------------
<S> <C>
4.26 Technology Access Letter between the Company and Robert Bixby dated
August 20, 1997.
11.1 Computation of earnings per share.*
12.1 Subsidiaries of the Company.*
13.1 Consent of Ernst & Young Audit, Independent Auditors.
</TABLE>
- ------------------
* Incorporated by reference to the Registration Statement (Registration
Statement No. 333-6322) on Form F-1 effective on February 13, 1997.
<PAGE> 1
EXHIBIT 2.1
ASSET PURCHASE AGREEMENT
By and Among
ILOG S.A.,
ILOG, INC.,
CPLEX OPTIMIZATION, INC.
and
TODD A. LOWE,
JANET LOWE AND
ROBERT BIXBY
Dated as of
August 4, 1997
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C> <C>
SECTION 1 - PURCHASE AND CONSIDERATION.........................................1
1.1 Sale and Purchase of Transferred Assets............................1
1.2 Assets Not to be Transferred.......................................3
1.3 Assumption of Liabilities..........................................3
1.4 Consideration......................................................4
1.5 Sales, Other Taxes and Expenses....................................5
1.6 Instruments of Conveyance and Transfer.............................5
SECTION 2 - REPRESENTATIONS, WARRANTIES OF SELLER AND SHAREHOLDERS.............6
2.1 Organization of Seller.............................................6
2.2 Seller Capital Structure...........................................6
2.3 Obligations With Respect to Capital Stock..........................6
2.4 Authority..........................................................7
2.5 Title to Assets; Effect of Agreement...............................7
2.6 Consents and Absence of Conflicts..................................7
2.7 Financial Statements...............................................8
2.8 Properties.........................................................8
2.9 Intellectual Property..............................................9
2.10 Customer List.....................................................12
2.11 Litigation........................................................13
2.12 Compliance with Laws..............................................13
2.13 Assumed Contracts.................................................13
2.14 Status of Contracts...............................................14
2.15 Employees of the Business.........................................14
2.16 Power of Attorney or Suretyship...................................14
2.17 Insurance.........................................................14
2.18 No Material Changes...............................................14
2.19 Environmental Matters.............................................15
2.20 Taxes.............................................................16
2.21 No Finder.........................................................16
2.22 Representations Complete..........................................16
SECTION 3 - REPRESENTATIONS AND WARRANTIES OF PURCHASER.......................16
3.1 Organization of Purchaser.........................................16
3.2 ILOG Capital Structure............................................17
3.3 Obligations With Respect to Capital Stock.........................18
3.4 Authority.........................................................18
3.5 SEC Filings; ILOG Financial Statements............................19
3.6 Absence of Certain Changes or Events..............................20
</TABLE>
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<PAGE> 3
TABLE OF CONTENTS
(CONTINUED)
<TABLE>
<CAPTION>
PAGE
----
<S> <C> <C>
3.7 ILOG Press Releases.................................................20
3.8 ILOG Intellectual Property Rights...................................20
3.9 Litigation..........................................................20
3.10 Consents and Absence of Conflicts...................................21
3.11 No Finder...........................................................21
3.12 Representations Complete............................................21
SECTION 4 - AGREEMENTS, ARRANGEMENTS AND COVENANTS PRIOR TO THE CLOSING.........21
4.1 Full Access.........................................................21
4.2 Conduct of Business.................................................22
4.3 Advice of Developments and Notification of Certain Matters..........23
4.4 Further Purchase Offers.............................................24
4.5 Employees...........................................................24
4.6 Employee Tax Matters................................................25
4.7 Best Efforts; Further Assurances; Consents of Third Parties.........25
SECTION 5 - CONDITIONS PRECEDENT TO OBLIGATIONS OF ILOG AND ILOG, U.S...........25
5.1 Representations True and Correct....................................25
5.2 Covenants Performed.................................................26
5.3 No Material Adverse Effect..........................................26
5.4 Corporate Action....................................................26
5.5 Injunctions or Restraints on Conduct of Business....................26
5.6 Necessary Consents..................................................26
5.7 Employee Agreements.................................................26
5.8 Asset Contribution Agreement........................................27
5.9 Seller Intellectual Property Actions................................27
5.10 CPLEX License Agreement.............................................27
5.11 Technology Access Letter............................................27
5.12 Transfer of Transferred Assets......................................27
5.13 Investment Representations..........................................27
5.14 Audited Financial Statements........................................27
5.15 Officers' and Shareholders's Certificates...........................27
5.16 Good Standing Certificates; Tax Certificate.........................28
5.17 Opinion of Seller's Counsel.........................................28
5.18 Approval of Documentation...........................................28
</TABLE>
-ii-
<PAGE> 4
TABLE OF CONTENTS
(CONTINUED)
<TABLE>
<CAPTION>
PAGE
----
<S> <C> <C>
SECTION 6 - CONDITIONS PRECEDENT TO OBLIGATIONS OF THE SELLER AND
SHAREHOLDERS......................................................28
6.1 Representations True and Correct..................................28
6.2 Covenants Performed...............................................28
6.3 No Material Adverse Effect........................................28
6.4 Corporate Action..................................................28
6.5 Injunctions or Restraints on Conduct of Business..................29
6.6 Employment Agreements.............................................29
6.7 Board Appointments................................................29
6.8 Stock Option Grants...............................................29
6.9 Asset Contribution Agreement......................................29
6.10 Technology Access Letter..........................................29
6.11 Registration Rights...............................................29
6.12 Payment of Purchase Price.........................................30
6.13 Opinion of Counsel................................................30
6.14 Opinion of French Counsel.........................................30
6.15 Officers' Certificate.............................................30
6.16 Approval of Documentation.........................................30
6.17 Depositary Arrangement............................................30
SECTION 7 - THE CLOSING.......................................................30
7.1 The Closing.......................................................30
7.2 Deliveries at the Closing.........................................31
SECTION 8 - OBLIGATIONS OF THE PARTIES AFTER CLOSING..........................31
8.1 Survival of Representations, Warranties and Covenants.............31
8.2 Indemnification by Seller and Shareholders........................31
8.3 Indemnification for Third Party Claims............................31
8.4 Procedures for Asserting Claims...................................33
8.5 Offset Against Promissory Notes...................................34
8.6 Seller and Shareholder Maximum Remedy.............................34
8.7 Post-Closing Date Access to Information...........................35
8.8 Use of CPLEX Name and Logo........................................35
8.9 Covenant Not to Compete...........................................35
8.10 Rule 144 Reports and Restricted Securities........................35
8.11 Further Assurances................................................36
</TABLE>
-iii-
<PAGE> 5
TABLE OF CONTENTS
(CONTINUED)
<TABLE>
<CAPTION>
PAGE
----
<S> <C> <C>
SECTION 9 - TERMINATION.........................................................36
9.1 Termination........................................................36
9.2 Effect of Termination..............................................36
SECTION 10 - CONFIDENTIALITY....................................................37
10.1 Confidentiality....................................................37
10.2 Public Announcements...............................................37
SECTION 11 - GENERAL PROVISIONS.................................................37
11.1 Payment of Costs...................................................37
11.2 Entire Agreement; Waivers..........................................37
11.3 Successors and Assigns.............................................38
11.4 Effect of Headings.................................................38
11.5 Notices............................................................38
11.6 Governing Law; Submission to Jurisdiction..........................39
11.7 Parties in Interest................................................40
11.8 Invalid Provisions.................................................40
11.9 Counterparts.......................................................40
11.10 Assignment.........................................................40
</TABLE>
-iv-
<PAGE> 6
EXHIBITS
A - Asset Contribution Agreement
B(i) - Promissory Note
B(ii) - Promissory Note
B(iii) - Promissory Note
C - Seller's Financial Statements
D - ILOG Press Releases
E(i) - Employment Agreement
E(ii) - Employment Agreement
E(iii) - Employment Agreement
F - Copyright Agreement
G - Trademark Assignment
H - Internet Domain Name Transfer Agreement
I - CPLEX License Agreement
J - Technology Access Letter
K - Investment Representations
L - Opinion of Porter and Hedges
M - Stock Option Grant and Agreement
N - Seller Employee Options
O - Opinion of Wilson Sonsini Goodrich & Rosati, P.C.
P - Opinion of Stibbe Simont Monahan Duhot & Giroux
SCHEDULES
1.1(b) - Fixed Assets
1.2 - Excluded Assets
1.3 - Assumed Liabilities
2.3 - Obligations With Respect to Capital Stock
2.5 - Security Interests, Liens, Encumbrances, etc.
2.6 - Required Consents & Absence of Conflicts
2.8(b) - Seller's Leased Real Property
2.8(c) - Equipment Loan and Porting Agreement
2.8(d) -
2.8(e) - Related Party Shareholdings
2.9 - Seller Registered Intellectual Property
2.9(d) - Third Party Rights to Seller Intellectual Property
2.9(g) - Seller Intellectual Property Indemnity Obligations
2.9(j) - Seller Intellectual Property Agreement Disputes
2.10 - Seller's Customer List
2.15 - Compensation of Officers and Employees of Seller
2.17 - Seller's Insurance Policies
2.18 - Material Changes Since June 30, 1997
-v-
<PAGE> 7
ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT (the "AGREEMENT"), dated as of this 4th
day of August, 1997 is made and entered into by and among ILOG S.A., a French
societe anonyme ("ILOG"), ILOG, Inc., a California corporation ("ILOG, U.S."),
CPLEX Optimization, Inc, a Texas corporation ("SELLER"), and Todd Lowe, Janet
Lowe and Robert Bixby, each a shareholder of Seller (the "SHAREHOLDERS").
WHEREAS, Seller is in the business of manufacturing, developing,
marketing and selling mathematical programming software (including, without
limitation, software presently under development) used for formulating and
solving optimization problems in the fields of business decision making,
operations, research and management science (the "BUSINESS");
WHEREAS, Seller desires to sell, and each of ILOG and ILOG, U.S.
(herein together referred to as the "PURCHASERS" and individually as a
"PURCHASER") desire to purchase, certain of the assets of Seller related to the
Business on the terms and conditions hereinafter set forth.
WHEREAS, before Closing Date (as defined below), Seller will be
reincorporated in the State of Nevada via the merger (the "REINCORPORATION
MERGER") of Seller with and into a wholly owned subsidiary of Seller (the
"MERGER SUBSIDIARY") to be organized by Seller for such purpose, whereupon the
Merger Subsidiary will succeed to all of the assets, properties, business,
rights, liabilities and obligations of Seller, including the rights and
obligations of Seller under this Agreement and the Ancillary Agreements (as
defined below) (from and after the effective time of the consummation of the
Reincorporation Merger, all references in this Agreement to "Seller" shall be
deemed to refer to both the Merger Subsidiary and the Seller as the predecessor
corporation of the Merger Subsidiary, unless the context otherwise clearly
requires).
NOW, THEREFORE, in consideration of the foregoing premises and the
mutual covenants and agreements contained herein, and in reliance upon the
representations and warranties contained herein, the parties hereto covenant and
agree as follows:
SECTION 1
PURCHASE AND CONSIDERATION
1.1 SALE AND PURCHASE OF TRANSFERRED ASSETS. On the terms and subject
to the conditions of this Agreement and except for the Excluded Assets (as
defined in Section 1.2 hereof), effective as of the Closing Date, Seller agrees
to transfer, convey, assign and deliver to ILOG or ILOG, U.S. and ILOG and ILOG,
U.S. jointly and severally agree to buy from Seller, free and clear of any
liens, charge, security interest, mortgage, pledge, easement, confidential sale
or other title retention or other restriction ("ENCUMBRANCE") the Business as a
going concern and all of Seller's rights, title and interest in and to all of
the assets and properties, tangible and intangible, real, personal or mixed,
owned or leased by Seller, of and pertaining to or used by Seller in the
Business, wherever located, whether known or unknown, and whether or not on the
books and records of
-1-
<PAGE> 8
Seller, including, for the avoidance of doubt, any assets to be transferred by
Seller to ILOG pursuant to that certain asset contribution agreement (contrat
d'apport) (the "ASSET CONTRIBUTION AGREEMENT") to be entered into on the Closing
Date (as defined hereunder) among ILOG, Seller and Shareholders, substantially
in the form annexed hereto as Exhibit A (the "TRANSFERRED ASSETS"), including by
way of example but not limited to the following:
(a) all equipment, furniture, fixtures, leasehold
improvements, tooling, machinery and other tangible property of the Business,
wherever located, which are currently carried on the books of Seller as listed
on Schedule 1.1(b), hereto (the "FIXED ASSETS");
(b) all inventories, including finished goods, work in
process, purchased parts, supplies and materials (the "INVENTORIES");
(c) all of Seller's rights to market, license and sell all
products marketed, licensed or sold with respect to the Business;
(d) all of Seller's claims against any third parties relating
to items included in the Transferred Assets, including, without limitation,
unliquidated rights under manufacturers' and vendors' warranties or guarantees,
but only to the extent such claims do not relate to any liabilities retained by
Seller and not assumed by Purchaser;
(e) all of Seller's right, title and interest under the
contracts, agreements, commitments, licenses from third parties, leases and
similar documents to which Seller is a party listed on Schedule 1.3 hereto (the
"ASSUMED CONTRACTS");
(f) all of Seller's right, title and interest under the
agreements pursuant to which Seller has licensed its software products and any
associated Seller Intellectual Property (the "ASSUMED LICENSE AGREEMENTS");
(g) the $5,000 security deposit paid pursuant to the sublease
of Seller's premises (the "SELLER SUB-LEASE");
(h) all of Seller's transferable books and records used in
connection with the Business, including, without limitation, all customer and
supplier lists, all advertising materials and marketing plans, drawings,
blueprints and manuals and other materials of Seller used in employee and
management training in the Business;
(i) all of Seller's business systems, including software
programs, computer printouts, databases and related items used in the Business,
including all of Seller's rights in such items;
(j) all of Seller's Intellectual Property (as defined in
Section 2.9 hereof) relating to or used in connection with the Business
(including, without limitation, the registered trademark and the trade name
"CPLEX" and the items listed on Schedule 2.9, and the business and goodwill of
-2-
<PAGE> 9
Seller associated therewith) and the right to sue for and recover damages for
the past infringement of such Seller Intellectual Property;
(k) all permits, licenses, franchises, consents and other
similar authorizations, if any, of any federal, state, local or foreign
governmental body which relate to the Business and which may be lawfully
assigned or transferred, subject to any action by such body which may be
required in connection with such assignment or transfer; and
(l) all other properties, rights and assets owned by Seller
and used in the Business, whether tangible or intangible, in whatever form or
medium, absolute, contingent, or otherwise.
1.2 ASSETS NOT TO BE TRANSFERRED. Seller shall retain and neither ILOG
nor ILOG, U.S. shall acquire (i) Seller's notes and accounts receivable on the
Closing Date; (ii) Seller's cash in any form and cash equivalents on the Closing
Date; (iii) Seller's minute books, tax returns, financial statements, books of
account (including its general ledger) and similar corporate documents which are
not necessary for Purchaser to operate the Business, (iv) all of the Seller's
rights under any of its insurance policies and any rights to refunds for prepaid
premiums; (v) any tax refunds available to Seller; (vi) Seller's rights under
this Agreement and (vii) those assets set forth on Schedule 1.2 (collectively,
the "EXCLUDED ASSETS").
1.3 ASSUMPTION OF LIABILITIES.
(a) On the terms and subject to the conditions contained
herein, on the Closing Date, the Purchasers shall jointly and severally assume
and agree thereafter to pay, perform and discharge only (i) the obligations and
liabilities of Seller remaining unpaid or unperformed on the Closing Date under
the Assumed Contracts and the Assumed License Agreements; and (ii) the Seller's
accrued liability for vacation in respect of its employees. The liabilities
described in (i) and (ii) of the preceding sentence shall be collectively
referred to herein as the "ASSUMED LIABILITIES."
(b) Except for the Assumed Liabilities, neither Purchaser
shall assume or have any responsibility for any other liability, obligation or
commitment of any nature, whether now or hereafter existing of Seller or
Shareholders (the "EXCLUDED LIABILITIES") and Seller or Shareholders, as the
case may be, shall be responsible for any payment, settlement or discharge of
all such liabilities, obligations or commitments which are not Assumed
Liabilities, including but not limited to the following:
(i) accounts payable of Seller incurred prior
to and as of the Closing Date;
(ii) liabilities for any income, business,
occupation, property, sales or use, withholding or similar tax or taxes of any
kind of the Seller or attributable to or pertaining to (1) the Transferred
Assets or (2) the Business of the Seller with respect to any period or
portion of any period ending prior to the Closing Date;
-3-
<PAGE> 10
(iii) liabilities for any income, business,
occupation, sales or use, withholding or similar tax or taxes of any kind
relating to the sale of the Transferred Assets hereunder or under the Asset
Contribution Agreement;
(iv) any liability concerning storage, disposal,
treatment or spillage of Hazardous Materials (as defined below) or any other
liability relating to environmental matters;
(v) save in respect of the Assumed Liabilities,
any contingent liabilities of Seller pertaining to the ownership, distribution
or use of any of Seller's Intellectual Property sold or licensed prior to or on
the Closing Date not identified on Schedule 1.3;
(vi) any liabilities, obligations or commitments
of Seller under any Seller employee contracts or benefit plans other than
accrued vacation;
(vii) any tort liability, including liabilities based
on theories of strict liability or product liability, arising from the Seller's
business, its assets, or the operation thereof arising from events, actions or
inactions occurring prior to
the Closing Date; and
(viii) any obligation of Seller in respect of
employees or other service providers of Seller arising on or prior to the
Closing Date, including, without limitation, any obligations in respect of
(i) severance pay or arrangements; (ii) workers compensation;
(iii) wrongful termination; (iv) discrimination; and (v) executive
reimbursements.
1.4 CONSIDERATION. At the Closing, in consideration of the sale and
transfer of the Transferred Assets, ILOG and/or ILOG, U.S. shall (i) assume the
Assumed Liabilities and (ii) deliver to Seller the following consideration (the
"PURCHASE PRICE"):
(a) Initial Cash Payment. ILOG and/or ILOG, U.S. shall
pay Seller an aggregate amount of Fifteen Million Dollars ($15,000,000)
(the "INITIAL CASH PAYMENT") in cash by means of wire transfers of immediately
available funds to the following bank account:
U.S. Bank of Nevada
Phone: (702)831-4780
Routing Number: 121201694
Account Number: 8290002602
Account Name: CPLEX Optimization, Inc.
(b) Additional Payment. ILOG shall deliver to Seller
three promissory notes, each to be substantially in the form attached hereto as
Exhibit B (i), (ii), and (iii) (the "PROMISSORY NOTES"), in the original
aggregate principal amount of Five Million Dollars ($5,000,000), bearing
interest at the lowest rate allowable by the United States Internal Revenue
Service for notes of such maturities to avoid the imputation of interest as
determined on the Closing Date (which rate is currently 6.65% per annum) and
subject to the provisions of this Section 1.4(b), providing for the payment of
principal in three equal installments of $1,666,666.67 in aggregate on each of
the second,
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<PAGE> 11
third and fourth anniversary of the Closing Date; provided, however, that in the
event that the per-share closing sale price (or the average of the closing bid
and ask price if no sales were reported) for transactions executed over the
Nasdaq National Market of American Depositary Shares representing shares of ILOG
on the trading day immediately preceding the Closing Date (as reported in The
Wall Street Journal) (the "CLOSING DATE STOCK PRICE") shall be greater than
$7.00, then the aggregate original principal amount of the Promissory Notes
shall instead be an amount equal to $5,000,000 increased by the lesser of in
aggregate (i) $2,400,000 or (ii) the product of $2,400,000 and a fraction, the
numerator of which shall be equal to the amount by which the Closing Date Stock
Price exceeds $7.00 and the denominator of which shall be $3.00; this additional
amount shall also be paid on the fourth anniversary of the Closing Date.
Interest on the outstanding principal amount shall be compounded monthly and
shall be due and payable on a quarterly basis as more particularly set forth in
the Promissory Notes; and
(c) Consideration Shares. ILOG shall issue one million seven
hundred thousand (1,700,000) shares in registered form, which shares shall be
validly issued, fully paid and nonassessable (the "CONSIDERATION SHARES"). The
Consideration Shares will be deposited pursuant to the Deposit Agreement
referred to in Section 6.17 below and delivered to Seller in the form of
American Depositary Shares (the "ADSS").
1.5 SALES, OTHER TAXES AND EXPENSES.
(a) Seller or Shareholders shall bear all United States
federal and state income taxes, and the Purchasers shall bear all sales,
registration, transfer and other like taxes, if any, arising by reason of or in
connection with the sale and transfer hereunder of the Transferred Assets. ILOG
shall bear all French taxes, duties and assessments by reason of or in
connection with the sale and transfer hereunder of the Transferred Assets. Each
of Seller, Shareholder or ILOG, as the case may be, agrees to pay and discharge
promptly when due the entire amount of all such taxes arising in connection with
the transactions set forth hereunder, in accordance with the provisions of this
Section 1.5 whether levied on Seller, Shareholders or ILOG, as the case may be.
(b) All miscellaneous expenses related to the Business,
including rent, utilities and other similar and related expenses shall be
allocated ratably to the period based on the number of days in the period prior
to the Closing Date and Seller and Shareholders shall be responsible for (and
shall indemnify ILOG and ILOG, U.S. against) all such expenses. ILOG and ILOG,
U.S. shall be responsible for (and shall indemnify Seller and Shareholders
against) all such expenses applicable after the Closing with respect to the
Transferred Assets and the Seller Lease.
1.6 INSTRUMENTS OF CONVEYANCE AND TRANSFER. On the Closing Date, Seller
shall deliver to the respective Purchasers such bills of sale, endorsements,
consents, assignments and other good instruments of conveyance and assignment as
shall be reasonably satisfactory to the respective Purchasers and their counsel
and effective to vest in the respective Purchasers all right, title and interest
in and to the Transferred Assets free and clear of any Encumbrances (the
"CONVEYANCE DOCUMENTS").
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SECTION 2
REPRESENTATIONS, WARRANTIES OF SELLER AND SHAREHOLDERS
Seller and each Shareholder jointly and severally represent and warrant
to the Purchasers that:
2.1 ORGANIZATION OF SELLER.
(a) Seller is a corporation duly organized, validly existing
and in good standing under the laws of the jurisdiction of its incorporation;
has the corporate power and authority to own, lease and operate its assets and
property and to carry on its business as now being conducted and as proposed to
be conducted and is duly qualified or licensed to do business and is in good
standing in each jurisdiction where the character of the properties owned,
leased or operated by it or the nature of its activities makes such
qualification or licensing necessary except where the failure to be so qualified
would not have a Material Adverse Effect (as defined below) on Seller.
(b) Seller has no subsidiaries and no ownership interest in
any other entity.
(c) Seller has delivered or made available to ILOG a true and
correct copy of the Articles of Incorporation and Bylaws of Seller, each as
amended to date, and each of such instruments are in full force and effect.
Seller is not in violation of any of the provisions of its Articles of
Incorporation or Bylaws or equivalent governing instruments.
(d) As of the effective time of the Reincorporation Merger,
Merger Subsidiary as Seller under this Agreement and the Ancillary Agreements
will have succeeded to all the assets, properties, business, rights, liabilities
and obligations of Seller, including the rights and obligations of Seller under
this Agreement and the Ancillary Agreements.
(e) When used in connection with Seller, the term "MATERIAL
ADVERSE EFFECT" means, for purposes of this Agreement, any change, event or
effect that is materially adverse to the business, assets (including intangible
assets), financial condition or results of operations of Seller.
2.2 SELLER CAPITAL STRUCTURE. The authorized capital stock of Seller
consists of 5,000 shares of Common Stock, $1.00 par value, of which there were
1,095 shares issued and outstanding as of the close of business on June 30,
1997. Since the close of business on June 30, 1997, no shares of Seller Capital
Stock have been issued.
2.3 OBLIGATIONS WITH RESPECT TO CAPITAL STOCK. Except as set forth in
Section 2.2, there are no equity securities or similar ownership interests of
any class of Seller, or any securities exchangeable or convertible into or
exercisable for such equity securities or similar ownership interests, issued,
reserved for issuance or outstanding. Except as set forth in Schedule 2.3, there
are no options, warrants, equity securities or similar ownership interests,
calls, rights (including preemptive rights), commitments or agreements of any
character to which Seller is a party or by which it is bound obligating Seller
to issue, deliver or sell, or cause to be issued, delivered or sold, or
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repurchase, redeem or otherwise acquire, or cause the repurchase, redemption or
acquisition, of any shares of capital stock or similar ownership interests of
Seller or obligating Seller to grant, extend, accelerate the vesting of or enter
into any such option, warrant, equity security, call, right, commitment or
agreement. There are no registration rights and, as of the date of this
Agreement, there are no voting trusts, proxies or other agreements or
understandings with respect to any equity security of any class of Seller other
than the Seller Shareholder Agreement dated March 29, 1989.
2.4 AUTHORITY. Seller has all requisite power and authority to enter
into this Agreement and all other agreements executed by Seller in connection
herewith, including the Asset Contribution Agreement, and all other Exhibits
hereto (the "ANCILLARY AGREEMENTS") and to consummate the transactions
contemplated hereby and thereby. The execution and delivery of this Agreement
and each of the Ancillary Agreements and the consummation of the transactions
contemplated hereby and thereby have been duly authorized by all necessary
corporate action on the part of Seller. This Agreement and each of the Ancillary
Agreements has been duly executed and delivered by Seller and each of the
Shareholders and, assuming the due authorization, execution and delivery by the
respective Purchasers, constitutes valid and binding obligations of Seller and
each of the Shareholders, enforceable in accordance with their respective terms,
except as enforceability may be limited by bankruptcy and other similar laws and
general principles of equity.
2.5 TITLE TO ASSETS; EFFECT OF AGREEMENT. Except as set forth on
Schedule 2.5, Seller has good and marketable title to, or a valid leasehold
interest in, the Transferred Assets, free and clear of all Encumbrances (other
than Permitted Encumbrances as defined below) and at the Closing will convey,
assign, transfer and deliver to ILOG or ILOG, U.S. good and marketable title to
the Transferred Assets free and clear of any Encumbrances (other than Permitted
Encumbrances as defined below). Neither Seller nor any Shareholder knows of any
infringement by third parties of its right, title and interest to the
Transferred Assets and no third party has any interest in the Transferred
Assets.
For purposes of this Agreement "PERMITTED ENCUMBRANCE" shall mean any
encumbrance consisting of (i) carriers', warehousemen's, mechanics', landlords',
materialmen's, repairmen's or similar common law or statutory liens or
encumbrances arising in the ordinary course of business which are not delinquent
or remain payable without penalty and (ii) the rights of Seller's licensees
under the Assumed License Agreements.
2.6 CONSENTS AND ABSENCE OF CONFLICTS.
(a) Except as set forth on Schedule 2.6, no consent of any
person not a party to this Agreement and no consent of any governmental
authority is required to be obtained on the part of Seller or Shareholders to
permit the consummation of the transactions contemplated by this Agreement, and
the Ancillary Agreements including without limitation, the transfer to the
respective Purchasers of all right, title and interest in and to the Transferred
Assets, free and clear of any Encumbrances.
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(b) Except as set forth on Schedule 2.6, as of the Closing,
neither the execution and delivery by Seller or the Shareholders of the
Agreements and Ancillary Agreements applicable to them, the compliance by Seller
or the Shareholders with the terms and conditions hereof or thereof, nor the
consummation by Seller and the Shareholders of the transactions contemplated
hereby or thereby, will (i) conflict with any of the terms, conditions and/or
provisions of the Articles of Incorporation, Bylaws or other constituent
documents of Seller, (ii) violate any provision of, or require any consent,
authorization or approval under, any law or regulation or any judicial or
administrative order, award, judgment, writ, injunction or decree or any
governmental permit or license issued to or applicable to Seller or any
Shareholder, which in the case of Seller is material to the Business or
condition of Seller or to the transactions contemplated by this Agreement or any
Ancillary Agreement, or (iii) conflict with, result in a breach of, constitute a
default or event of default under, or require any consent, authorization or
approval under any contract, lien, or instrument to which Seller or any
Shareholder is a party or by which it may be bound, which in the case of Seller
is material to the Business or condition of Seller or to the transactions
contemplated by this Agreement or any Ancillary Agreement.
2.7 FINANCIAL STATEMENTS.
(a) Attached hereto as Exhibit C are a draft balance sheet and
an income statement of Seller for the year ended as of June 30, 1997 ("SELLER'S
FINANCIAL STATEMENTS"). Seller's Financial Statements fairly present the
financial position and results of operations of the Business at the dates and
for the periods reflected therein in all material respects. Seller's Financial
Statements have been prepared in accordance with United States generally
accepted accounting principles ("U.S. GAAP"). The balance sheet of Seller dated
June 30, 1997 is referred to in this Agreement as the "6/30/97 BALANCE SHEET."
(b) Seller has no debt, liability or obligation of a nature
required to be disclosed on a balance sheet or a related note to financial
statements prepared in accordance with U.S. GAAP that is not set forth on the
face of the 6/30/97 Balance Sheet, except for those that have been incurred
after June 30, 1997 in the ordinary course of business and consistent with past
practice.
2.8 PROPERTIES.
(a) Seller does not have a freehold interest in any real
property.
(b) No real property related to the Business is leased to
Seller other than the Seller Sub-Lease described on Schedule 2.8(b).
(c) Except for the Excluded Assets and except for the
Equipment Loan and Porting Agreements as set forth on Schedule 2.8(c), to
Seller's and Shareholders' knowledge, included in the Transferred Assets are all
the personal and tangible property necessary for the conduct by Purchaser of the
Business as now conducted by Seller.
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<PAGE> 15
(d) All tangible personal property included in the Transferred
Assets is in good operating condition and repair, ordinary wear and tear
excepted. No shareholder, officer, director or employee of Seller, nor any
spouse, child or other relative of any of these persons, owns, or has any
interest, directly or indirectly, in any of the real or personal property
included in the Transferred Assets, or except as set forth in Schedule 2.8(d),
any intangible property included in the Transferred Assets.
(e) Except as set forth in Schedule 2.8(e) to the knowledge of
Seller and Shareholders, no shareholder, officer or director of Seller or any
affiliates of any of them, nor any spouse or child of any of them, has any
direct or indirect interest in any competitor, supplier or customer of Seller or
in any person from whom or to whom Seller leases any real or personal property,
or in any other person with whom Seller is doing a material amount of business
or currently proposes to do a material amount of business except in each case
not more than a one percent (1%) beneficial ownership interest in the
outstanding stock of any such entity the stock of which is publicly traded.
2.9 INTELLECTUAL PROPERTY.
For the purposes of this Agreement, the following terms have
the following definitions:
"INTELLECTUAL PROPERTY" shall mean any or all of the following
and all rights therein, arising therefrom, or associated therewith: (i) all
United States and foreign patents and applications therefor and all reissues,
divisions, renewals, extensions, provisionals, continuations and
continuations-in-part thereof; (ii) all inventions (whether patentable or not),
invention disclosures, improvements, trade secrets, proprietary information,
know how, technology, technical data and customer lists, and all documentation
relating to any of the foregoing; (iii) all copyrights, copyrights registrations
and applications therefor and all other rights corresponding thereto throughout
the world; (iv) all mask works, mask work registrations and applications
therefor; (v) all industrial designs and any registrations and applications
therefor throughout the world; (vi) all trade names, logos, common law
trademarks and service marks; trademark and service mark registrations and
applications therefor and all goodwill associated therewith throughout the
world; (vii) all databases and data collections and all rights therein
throughout the world; and (viii) all computer software including all source
code, object code, firmware, development tools, files, records and data, all
media on which any of the foregoing is recorded, all Web addresses, sites and
domain names, and (ix) any similar, corresponding or equivalent rights to any of
the foregoing and (x) all documentation related to any of the foregoing.
"SELLER INTELLECTUAL PROPERTY" shall mean any Intellectual
Property that is owned by or exclusively licensed to Seller.
"REGISTERED INTELLECTUAL PROPERTY" shall mean all United
States, international and foreign: (i) patents, patent applications (including
provisional applications); (ii) registered trademarks, applications to register
trademarks, intent-to-use applications, or other registrations or
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applications related to trademarks; (iii) registered copyrights and applications
for copyright registration; (iv) any mask work registrations and applications to
register mask works; and (v) any other Seller Intellectual Property that is the
subject of an application, certificate, filing, registration or other document
issued by, filed with, or recorded by, any state, government or other public
legal authority.
(a) Schedule 2.9 lists all Registered Intellectual Property
owned by, or filed in the name of, Seller (the "SELLER REGISTERED INTELLECTUAL
PROPERTY") and lists any proceedings or actions before any court, tribunal
(including the United States Patent and Trademark Office (the "PTO") or
equivalent authority anywhere in the world) related to any of the Seller
Registered Intellectual Property rights.
(b) Except as reflected in the Assumed Contracts and Assumed
License Agreements, each item of Seller Intellectual Property, including all
Seller Registered Intellectual Property listed in Schedule 2.9, is free and
clear of any Encumbrances. Seller (i) is the exclusive owner of all trademarks
and trade names used by Seller in connection with the operation or conduct of
the Business, including the sale of any products or technology or the provision
of any services by Seller and (ii) owns exclusively (subject to the rights of
its licensees under the Assumed License Agreements), and has good title to, all
copyrighted works that are Seller products or other works of authorship that the
Seller otherwise purports to own.
(c) To the extent that any Seller Intellectual Property has
been developed or created by any person other than Seller for which the Seller
has, directly or indirectly, paid or provided consideration, the Seller has a
written agreement with such person with respect thereto and Seller thereby has
obtained ownership of, and is the exclusive owner of, all such Intellectual
Property by operation of law or by valid assignment.
(d) Except under the Assumed License Agreements, Seller has
not transferred ownership of or granted any license of or right to use or
authorized the retention of any rights to use any Intellectual Property that is
or was Seller Intellectual Property, to any other person.
(e) The Seller Intellectual Property constitutes all the
Intellectual Property used in and/or necessary to the conduct of its business as
it currently is conducted or is reasonably contemplated to be conducted,
including, without limitation, the design, development, manufacture, use, import
and sale of the products, technology and services of the Seller (including
products, technology or services currently under development).
(f) Other than "shrink-wrap" and similar widely available
commercial end-user licenses, the licenses evidenced by Assumed Contracts and
the Assumed License Agreements include all contracts, licenses and agreements to
which Seller is a party with respect to any Intellectual Property. No person
other than Seller has ownership rights to improvements made by the Seller in
Intellectual Property which has been licensed to Seller.
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(g) The licenses evidenced by the Assumed Contracts and the
Assumed License Agreements comprise all contracts, licenses and agreements
between Seller and any other person wherein or whereby Seller has agreed to, or
assumed, any obligation or duty to warrant, indemnify, reimburse, hold harmless,
guaranty or otherwise assume or incur any obligation or liability or provide a
right of rescission with respect to the infringement or misappropriation by
Seller or such other person of the Intellectual Property of any person other
than Seller. With respect to the Assumed License Agreements, Seller has
delivered to ILOG, U.S., copies of those documents set forth on Schedule 2.9(g)
hereto and there is no other Assumed License Agreements in which Seller has
agreed to assume or has assumed any obligation or duty to warrant, indemnify,
reimburse, hold harmless, guaranty or otherwise assume or incur any obligation
or liability or provide a right of rescission with respect to the infringement
or misappropriation of third party intellectual property rights which is
materially different to the terms relating to the same in the agreements
disclosed to Purchaser on Schedule 2.9(g).
(h) The operation of the business of Seller as it currently is
conducted or is reasonably contemplated to be conducted, including but not
limited to Seller's design, development, use, import, manufacture and sale of
the products, technology or services (including products, technology or services
currently under development) of Seller does not infringe or misappropriate the
Intellectual Property of any person, violate the rights of any person (including
rights to privacy or publicity), or constitute unfair competition or trade
practices under the laws of any jurisdiction, and Seller has not received notice
from any person claiming that such operation or any act, product, technology or
service (including products, technology or services currently under development)
of Seller infringes or misappropriates the Intellectual Property of any person
or constitutes unfair competition or trade practices under the laws of any
jurisdiction (nor is the Seller or any of the Shareholders aware of any basis
therefor).
(i) Except as described in Schedule 2.9, each item of Seller
Registered Intellectual Property is valid and subsisting, all necessary
registration, maintenance and renewal fees in connection with such Registered
Intellectual Property have been paid and all necessary documents and
certificates in connection with such Seller Registered Intellectual Property
have been filed with the relevant patent, copyright, trademark or other
authorities in the United States or foreign jurisdictions, as the case may be,
for the purposes of maintaining such Registered Intellectual Property. For each
product or technology of Seller that constitutes or includes a copyrightable
work, Seller has registered the copyright in the latest released version of such
work with the U.S. Copyright Office. In each case in which Seller has acquired
ownership of any Intellectual Property rights from any person, Seller has
obtained a valid and enforceable assignment sufficient to irrevocably transfer
all rights in such Intellectual Property (including the right to seek past and
future damages with respect to such Intellectual Property) to Seller and, to the
maximum extent provided for by, and in accordance with, applicable laws and
regulations, Seller has recorded each such assignment with the relevant
governmental authorities, including the PTO, the U.S. Copyright Office, or their
respective equivalents in any relevant foreign jurisdiction, as the case may be.
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(j) Except as set forth on Schedule 2.9, there are no
contracts, licenses or agreements between Seller and any other person with
respect to Seller Intellectual Property under which there is any dispute known
to Seller or any Shareholder regarding the scope of such agreement, or
performance under such agreement including with respect to any payments to be
made or received by Seller thereunder.
(k) To the Knowledge of Seller and each Shareholder, no person
is infringing or misappropriating any Seller Intellectual Property.
(l) Seller has taken all steps that are reasonably required to
protect the Seller's rights in confidential information and trade secrets of
Seller or provided by any other person to Seller. Without limiting the
foregoing, Seller has, and enforces, a policy requiring each employee,
consultant and contractor to execute proprietary information, confidentiality
and assignment agreements substantially in the Seller's standard forms, and all
current and former employees, consultants and contractors of the Seller have
executed such an agreement.
(m) Other than general regulatory or other restrictions
applicable to the business in which Seller is engaged, no Seller Intellectual
Property or product, technology or service of Seller is subject to any
proceeding or outstanding decree, order, judgment, agreement or stipulation that
restricts in any manner the use, transfer or licensing thereof by Seller or may
affect the validity, use or enforceability of such Seller Intellectual Property.
(n) No (i) product, technology, service or publication of
Seller (ii) material published or distributed by Seller or (iii) conduct or
statement of Seller constitutes obscene material, a defamatory statement or
material, false advertising or otherwise violates any law or regulation.
(o) All of Seller's products distributed after December 1995
(including products currently under development) will record, store, process,
calculate and present calender dates falling on and after (and if applicable,
spans of time including) January 1, 2000 and will calculate any information
dependent on or relating to such dates in the same manner, and with the same
functionality, data integrity and performance, as the products record, store,
process, calculate and present calendar dates on or before December 31, 1999, or
calculate any information dependent on or relating to such dates (collectively,
"YEAR 2000 COMPLIANT"). All of Seller's products (i) will lose no functionality
with respect to the introduction of records containing dates falling on or after
January 1, 2000 and (ii) will be interoperable with other products used by
Purchaser that may deliver records to Seller's products or receive records from
Seller's products, or interact with Seller's products, including but not limited
to back-up and archived data.
2.10 CUSTOMER LIST. Schedule 2.10 contains a correct and current list
of all customers (including independent distributors and value added resellers)
of the Business for the twelve months preceding June 30, 1997 from which Seller
derived invoiced or non-invoiced revenues in excess of $50,000. Except as
indicated on Schedule 2.10, each of Seller and Shareholders does not have any
specific information indicating that any customers which would be reasonably
considered to
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represent a material repeat revenue source intends to materially decrease the
amount of business that any such customer is presently doing with Seller.
2.11 LITIGATION. There is no action, suit, proceeding, claim,
arbitration or investigation pending, or as to which Seller has received any
notice of assertion, nor, to Seller's knowledge, is there a threatened action,
suit, proceeding, claim, arbitration or investigation against Seller which
reasonably would be likely to be material to Purchaser, or which in any manner
challenges or seeks to prevent, enjoin, alter or delay any of the transactions
contemplated by this Agreement. To the knowledge of Seller and Shareholder, no
governmental entity has at any time challenged or questioned in writing the
legal right of Seller to manufacture, offer, sell or license any of its products
in the present manner or versions thereof.
2.12 COMPLIANCE WITH LAWS. Seller has complied with all, and is not in
violation of any, applicable federal, state and local statutes, laws and
regulations (including, without limitation, any and all applicable building,
zoning, environmental, employment or other law, ordinance or regulation)
affecting its properties, employees or the operation of its Business.
2.13 ASSUMED CONTRACTS. Schedule 1.3 contains an accurate and complete
list of all Assumed Contracts to be assumed by the Purchasers as Assumed
Liabilities pursuant to this Agreement. There is no breach or default, or event
that with notice or lapse of time, or both, would constitute a breach or
default, by Seller, or to the knowledge of Seller or the Shareholders, any other
party to any of the Assumed Contracts, except as described on such Schedule.
Neither Seller nor any Shareholder has received notice that any party to any of
the Assumed Contracts intends to cancel or terminate any of such Assumed
Contracts or to exercise or not exercise any options under any of the Assumed
Contracts, except as described on such Schedule. Except as set forth on Schedule
1.3, Seller is not a party to or bound by:
(i) any contract for the purchase, licensing or development
of any Intellectual Property by Seller, whether as licensor or licensee,
involving the payment of more than $25,000 after the date hereof, or which
purports to be exclusive in any respect;
(ii) any guarantee of the obligations of customers, suppliers,
officers, directors, employees, affiliates of Seller or others;
(iii) any contract that provides for the incurrence by Seller
of indebtedness for borrowed money secured by any Transferred Assets;
(iv) any non-competition agreement or similar contract that
limits or restricts Seller from carrying on any business; or
(v) any other material contract entered into outside the
ordinary course of business.
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2.14 STATUS OF CONTRACTS. Each of the Assumed Contracts and Assumed
License Agreements (i) constitutes a valid and binding obligation of Seller and,
to the knowledge of Seller and Shareholders, the other parties thereto (subject
to bankruptcy, insolvency, reorganization, moratorium and similar laws of
general application relating to or affecting creditors' rights and to general
equity principles), and (ii) is in full force and effect. Seller has not been
notified that any other party to any such contract intends to terminate it.
Complete and correct copies of each of the Assumed Contracts have heretofore
been delivered to Purchaser (including all amendments, estoppel certificates,
modifications and material correspondence between Seller and the other party
thereto).
2.15 EMPLOYEES OF THE BUSINESS. Schedule 2.15 attached hereto contains
a true and complete list of the names of all directors, officers and employees
of Seller who work in the Business. Schedule 2.15 contains a schedule showing
the cash and non-cash compensation (including any and all perquisites) of all
such persons.
2.16 POWER OF ATTORNEY OR SURETYSHIP. Seller does not have any power of
attorney with respect to the Business or the Transferred Assets which will not
be terminated by the Closing.
2.17 INSURANCE. Schedule 2.17 attached hereto contains a true and
correct list of all insurance policies held by Seller. Seller has provided to
Purchaser copies of all such insurance policies. Seller has in full force and
effect property and casualty insurance in types and amounts normal and
appropriate for a business of its type. Such insurance or comparable insurance
will be maintained in full force and effect up to and including the Closing
Date.
2.18 NO MATERIAL CHANGES.
With respect to the Business, except as disclosed in Schedule
2.18, since June 30, 1997, there has not been any:
(a) Material adverse change in the financial condition,
liabilities, assets, business or prospects of the Business other than those
relating to the economy or industry of the Business generally;
(b) Destruction, damage to or loss of any asset (whether or
not covered by insurance) that materially and adversely affects the financial
condition, business or prospects of the Business;
(c) Sale, transfer, lease, license or agreement concerning any
asset of Seller, except in the ordinary course of business;
(d) Amendment, termination, relinquishment or nonrenewal of
any Assumed Contract or Assumed License Agreement, except in the ordinary course
of business;
(e) Waiver or release of any right or claim of Seller relating
to the Business, except in the ordinary course of business;
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(f) Other event or condition of any character that has or
might have a Material Adverse Effect on Seller; or
(g) Agreement by Seller to do any of the things described in
the preceding clauses (a) through (f).
2.19 ENVIRONMENTAL MATTERS.
(a) Compliance with Laws. Seller has no liability, actual or
contingent, for any claims, costs, suits or damages of any kind or nature
arising out of the presence prior to the Closing of any Hazardous Materials in,
under, or on any property that Seller has at any time owned, operated, occupied
or leased and that Purchaser will own, operate, occupy or lease in connection
with the Transferred Assets.
(b) Environmental Proceedings. Seller has not received any
notice that it (i) is the subject of any pending claim, investigation, action,
proceeding, injunction or decree relating to the use or disposal of any
Hazardous Materials by it, (ii) may be responsible for any investigation,
remediation, removal, emission or spill of Hazardous Materials, or (iii) is the
subject of any pending claim, action, proceeding, or investigation relating to
its exposure of others to Hazardous Materials. Neither Seller nor any
Shareholder is aware of any fact or circumstance which could involve Seller in
any environmental litigation or impose any material environmental liability upon
either Seller or Purchaser.
(c) Permits. Seller currently holds all environmental permits
(if any) required for the conduct of its Business as presently conducted. All
such environmental permits are in full force and effect, and Seller has complied
with any covenants or conditions set forth in the environmental permits. To the
knowledge of Seller and Shareholders, and assuming that Purchaser operates the
Business in a manner similar to Seller, Purchaser will not be required to make
any material capital expenditures to comply with any environmental permit or
environmental law in effect at the Closing Date.
(d) Definitions. The following definitions will apply for
purposes of this Section 2.19:
(i) HAZARDOUS MATERIALS: A Hazardous Material
is any material or substance that is prohibited or regulated by any
Environmental Law or that has been designated by any governmental authority to
be radioactive, toxic, hazardous, otherwise a danger to health or reproduction
or the environment.
(ii) ENVIRONMENTAL LAWS ARE: all laws, rules,
regulations, orders, treatises, statutes, and codes promulgated by any
governmental authority which prohibit, regulate or control any Hazardous
Material and the use, storage, generation, treatment, manufacture, transport,
exposure of others to, or handling of Hazardous Materials.
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2.20 TAXES. To the extent a failure to do so would adversely affect a
Purchaser or the Transferred Assets, Seller has (i) timely filed within the time
period for filing or any extension granted with respect thereto all federal,
state, local and other returns, estimates and reports relating to any and all
taxes or other governmental charges, obligations or fees and any related
interest or penalties ("TAX" or "TAXES") it is required to file and has paid all
Taxes shown due thereon or has provided adequate reserves therefor on its books
and records, and (ii) withheld with respect to Seller's employees all federal
and state income Taxes, FICA, FUTA and other Taxes required to be withheld and
paid such withheld amounts to the appropriate governmental body within the time
period required by law.
2.21 NO FINDER. Neither Seller nor any of the Shareholders nor any
person acting on their behalf has paid or become obligated to pay or taken any
act which would obligate any Purchaser to pay, any fee or commission to any
broker, finder or intermediary for or on account of the transactions
contemplated by this Agreement or the Ancillary Agreements.
2.22 REPRESENTATIONS COMPLETE. None of the representations and
warranties made by Seller or Shareholders herein, in any Ancillary Agreement or
in any certificate furnished by any of them, or on their behalf, pursuant to
this Agreement or any Ancillary Agreement, contains or will contain any untrue
statement of a material fact, or omits to state any material fact required to be
stated therein or necessary in order to make the statements made, in the light
of the circumstances under which they were made, not misleading.
SECTION 3
REPRESENTATIONS AND WARRANTIES OF PURCHASER
The Purchasers jointly and severally represent and warrant to Seller
and Shareholders that:
3.1 ORGANIZATION OF PURCHASER.
(a) ILOG and each of its subsidiaries is a corporation duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its incorporation; has the corporate power and authority to own,
lease and operate its assets and property and to carry on its business as now
being conducted and as proposed to be conducted and is duly qualified or
licensed to do business and is in good standing in each jurisdiction where the
character of the properties owned, leased or operated by it or the nature of its
activities makes such qualification or licensing necessary, except where the
failure to be so qualified would not have a Material Adverse Effect (as defined
below) on ILOG or ILOG, U.S. ILOG, U.S. is a wholly owned subsidiary of ILOG.
(b) Each of ILOG and ILOG, U.S. has delivered or made
available to Seller a true and correct copy of its Statuts, Certificate of
Incorporation and Bylaws (or equivalent governing instruments) of ILOG or ILOG,
U.S. Neither ILOG nor any of its subsidiaries is in violation of any
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of the provisions of its Statuts, Certificate of Incorporation or Bylaws or
equivalent governing instruments.
(c) When used in connection with a Purchaser, the term
"MATERIAL ADVERSE EFFECT" means, for purposes of this Agreement, any change,
event or effect that is materially adverse to the business, assets (including
intangible assets), financial condition or results of operations of ILOG or
ILOG, U.S. and their affiliated entities taken as a whole, except that a change
in the market price of the ILOG shares shall not, in and of itself, be deemed a
Material Adverse Effect with respect to ILOG or ILOG, U.S.
3.2 ILOG CAPITAL STRUCTURE. The authorized issued and outstanding
capital stock of ILOG consists, as of the close of business on June 30, 1997, of
10,959,622 shares, 4.00 French francs par value. Since the close of business on
June 30, 1997, no shares of ILOG capital stock have been issued except pursuant
to the exercise of options outstanding as of June 30, 1997 under the ILOG Stock
Option Plans (as defined below) and except under the ILOG Employee Stock Plans
(as defined below). As of the close of business on June 30, 1997, there were no
other outstanding commitments to issue any shares of capital stock or voting
securities of ILOG other than pursuant to the exercise of options outstanding as
of that date under the 1992 and 1996 Stock Option Plans of ILOG (collectively,
the "ILOG STOCK OPTION PLANS") and pursuant to the 1996 International Employee
Stock Purchase Plan and the 1996 French Employee Savings Plan (collectively, the
"ILOG EMPLOYEE STOCK PLANS"). All outstanding shares of ILOG have been duly
authorized, validly issued, fully paid and are nonassessable and free of any
liens or encumbrances other than any liens or encumbrances created by or imposed
upon the holders thereof. As of the close of business on June 30, 1997, ILOG has
reserved 1,775,473 shares for issuance to employees, directors and independent
contractors pursuant to the ILOG Stock Option Plans, net of exercises,
cancellations, repurchases and expiration of options of which, as of the close
of business on June 30, 1997, 1,284,004 shares were subject to outstanding,
unexercised options and 461,470 shares remained available for future grant. In
July ILOG issued a total of 18,989 shares under the ILOG Employee Stock Plans.
Other than pursuant to this Agreement, the Asset Contribution Agreement, the
ILOG Stock Option Plans and the ILOG Employee Stock Plans, there are no other
options, warrants, calls, rights, commitments or agreements of any character to
which ILOG is a party or by which ILOG is bound obligating ILOG to issue,
deliver, sell, repurchase or redeem, or cause to be issued, delivered, sold,
repurchased or redeemed, any shares of the capital stock of ILOG or obligating
ILOG to grant, extend or enter into any such option, warrant, call, right,
commitment or agreement. The shares of ILOG shares to be issued pursuant to the
Asset Contribution Agreement will be duly authorized, validly issued, fully
paid, and non-assessable. At the Closing Date, the maximum number of shares for
which the options described in Sections 6.8(a) and 6.8(b) are exercisable
(without regard to any vesting requirement) will be reserved for issuance upon
exercise of such options, and upon exercise of such options in accordance with
their terms all shares issued upon such exercise will be duly authorized,
validly issued, fully paid and nonassessable.
There are no obligations of ILOG to register any of its shares other
than pursuant to the ILOG Registration Rights Agreement as delivered to Seller.
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3.3 OBLIGATIONS WITH RESPECT TO CAPITAL STOCK. Except as set forth in
Section 3.2, there are no equity securities, partnership interests or similar
ownership interests of any class of ILOG, or any securities exchangeable or
convertible into or exercisable for such equity securities, partnership
interests or similar ownership interests, issued, reserved for issuance or
outstanding. Except for securities ILOG owns, directly or indirectly through one
or more subsidiaries or director nominee shares, there are no equity securities,
partnership interests or similar ownership interests of any class of any
subsidiary of ILOG, or any security exchangeable or convertible into or
exercisable for such equity securities, partnership interests or similar
ownership interests, issued, reserved for issuance or outstanding. Except as set
forth in Section 3.2, there are no options, warrants, equity securities,
partnership interests or similar ownership interests, calls, rights (including
preemptive rights), commitments or agreements of any character to which ILOG or
any of its subsidiaries is a party or by which it is bound obligating ILOG or
any of its subsidiaries to issue, deliver or sell, or cause to be issued,
delivered or sold, or repurchase, redeem or otherwise acquire, or cause the
repurchase, redemption or acquisition, of any shares of capital stock,
partnership interests or similar ownership interests of any of ILOG's
subsidiaries.
3.4 AUTHORITY.
(a) Each of ILOG and ILOG, U.S. has all requisite corporate
power and authority to enter into this Agreement and the Ancillary Agreements
and to consummate the transactions contemplated hereby and thereby. The
execution and delivery of this Agreement and the Ancillary Agreements and the
consummation of the transactions contemplated hereby and thereby has been duly
authorized by the respective Boards of Directors of ILOG and ILOG, U.S. A vote
of the holders of at least a two-thirds majority of the outstanding shares of
ILOG is required for ILOG's stockholders to approve certain of the transactions
contemplated by this Agreement and the Ancillary Agreements. This Agreement has
been duly executed and delivered by each of ILOG and ILOG, U.S., and assuming
the due authorization, execution and delivery by Seller and Shareholders,
constitutes the valid and binding obligation of each of ILOG and ILOG, U.S.,
enforceable in accordance with its terms, except as enforceability may be
limited by bankruptcy and other similar laws and general principles of equity.
The execution and delivery of this Agreement and the Ancillary Agreements by
ILOG and ILOG, U.S. does not, and upon approval by the stockholders of ILOG as
set forth above, the performance of this Agreement and the Ancillary Agreements
by ILOG and ILOG, U.S. will not, (i) conflict with or violate the Statuts,
Certificate of Incorporation or Bylaws of ILOG or ILOG, U.S. or the equivalent
organizational documents of any of ILOG's subsidiaries, (ii) conflict with or
violate any law, rule, regulation, order, judgment or decree applicable to ILOG
or any of its subsidiaries or by which its or any of their respective properties
is bound or affected or (iii) result in any breach of or constitute a default
(or an event that with notice or lapse of time or both would become a default)
under, or impair ILOG's or ILOG, U.S.'s rights or alter the rights or
obligations of any third party under, or give to others any rights of
termination, amendment, acceleration or cancellation of, or result in the
creation of an encumbrance on any of the properties or assets of ILOG or any of
its subsidiaries pursuant to, any material notes, bond, mortgage, indenture,
contract, agreement, lease, license, permit, franchise or other instrument or
obligation to which ILOG or any of its subsidiaries is a party or by which ILOG
or any of its subsidiaries or its or any of their respective properties are
bound or affected except, with respect to
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<PAGE> 25
clause (iii), for any such conflicts, violations, defaults or other occurrences
that would not have a Material Adverse Effect on ILOG or ILOG, U.S.
(b) No consent, approval, order or authorization of, or
registration, declaration or filing with any governmental entity is required by
or with respect to ILOG or ILOG, U.S. in connection with the execution and
delivery of this Agreement or any Ancillary Agreement, except for (i) the filing
of the Asset Contribution Agreement with the Commissaire aux Apports (French
Contribution Auditor) and the rendering of an audit report by such auditor and
(ii) such other consents, authorizations, filings, approvals and registrations
which if not obtained or made would not have a Material Adverse Effect on Seller
or ILOG or ILOG, U.S. or have a material adverse effect on the ability of the
parties to consummate this Agreement and the transactions contemplated hereby.
3.5 SEC FILINGS; ILOG FINANCIAL STATEMENTS.
(a) ILOG has filed all forms, reports and documents required
to be filed with the SEC since February 14, 1997, and has made available to
Seller such forms, reports and documents in the form filed with the SEC. All
such required forms, reports and documents (including those that ILOG may file
subsequent to the date hereof) are referred to herein as the "ILOG SEC REPORTS."
As of their respective dates, the ILOG SEC Reports (i) were prepared in
accordance with the requirements of the Securities Act of 1933, as amended or
the Securities and Exchange Act of 1934, as amended, as the case may be, and the
rules and regulations of the SEC thereunder applicable to such ILOG SEC Reports,
and (ii) did not at the time they were filed (or if amended or superseded by a
filing prior to the date of this Agreement, then on the date of such filing)
contain any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading. None of ILOG's subsidiaries is required to file any forms, reports
or other documents with the SEC.
(b) The consolidated financial statements of ILOG included in
the February 14, 1997 Registration Statement with respect to ILOG's Initial
Public Offering and each of the consolidated financial statements (including, in
each case, any related notes thereto) contained in the ILOG SEC Reports
(collectively the "ILOG FINANCIALS"), including any ILOG SEC Reports filed after
the date hereof until the Closing, complied or will comply as to form in all
material respects with the published rules and regulations of the SEC with
respect thereto and fairly presented or will fairly present the consolidated
financial position of ILOG and its subsidiaries as at the respective dates
thereof and the consolidated results of ILOG's operations and cash flows for the
periods indicated in accordance with US GAAP, except that the unaudited interim
financial statements were or are subject to normal and recurring year-end
adjustments. The condensed consolidated balance sheet of ILOG as of June 30,
1997 (hereinafter referred to as the "ILOG BALANCE SHEET") and the consolidated
statements of operations for the quarter and year ended June 30, 1997 contained
in the proposed ILOG Press Releases dated as of August 5, 1997, fairly present
the consolidated financial position of ILOG and its subsidiaries at the date
thereof and the results of their consolidated operations and the periods covered
thereby in accordance with U.S. GAAP, except for the condensation of the Balance
Sheets and the non-inclusion of Statements of Cash Flows and notes to
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the financial statements. Except as disclosed in the ILOG Financials, since the
date of the ILOG Balance Sheet, neither ILOG nor any of its subsidiaries has any
liabilities of a nature required to be disclosed on a balance sheet prepared in
accordance with U.S. GAAP which are, individually or in the aggregate, material
to the business, results of operations or financial condition of ILOG and its
subsidiaries taken as a whole, except liabilities (i) provided for in the ILOG
Balance Sheet, or (ii) incurred since the date of the ILOG Balance Sheet in the
ordinary course of business consistent with past practices.
3.6 ABSENCE OF CERTAIN CHANGES OR EVENTS. Since the date of the ILOG
Balance Sheet through the date of this Agreement, except to the extent disclosed
in the ILOG Press Releases (as defined below) there has not been: (i) any
Material Adverse Effect on ILOG, (ii) any material change by ILOG in its
accounting methods, principles or practices, except as required by concurrent
changes in historical accounting practices of ILOG, or (iii) any material
revaluation by ILOG of any of its assets, including, without limitation, writing
down the value of capitalized inventory or writing off notes or accounts
receivable other than in the ordinary course of business.
3.7 ILOG PRESS RELEASES. Set forth on Exhibit D hereto is the current
draft of the proposed ILOG Press Releases planned for August 5, 1997 relating to
ILOG's results for the fiscal year ended June 30, 1997 and to the announcement
of this Agreement and the consummation of the transactions contemplated hereby
which announcement is subject to the prior approval by Seller and Shareholders
(the "ILOG PRESS RELEASES").
3.8 ILOG INTELLECTUAL PROPERTY RIGHTS. ILOG and its subsidiaries own or
possess the right to use all patents, trademarks (including ILOG's name together
with its logo), trademark registrations, service marks, service mark
registrations, trade names, copyrights, licenses, inventions, trade secrets,
know-how and rights owned by them or any of them or necessary for the conduct of
their respective businesses, and ILOG is not aware of any claim to the contrary
or any challenge by any other person to the rights of ILOG and its subsidiaries
with respect to the foregoing. ILOG's business as now conducted and as proposed
to be conducted does not and will not infringe or conflict with patents,
trademarks, service marks, trade names, copyrights, trade secrets, licenses or
other intellectual property or franchise right of any person. No claim has been
made against or notice given to ILOG alleging the infringement or other
violation by ILOG of a patent, trademark, service mark, trade name, copyright,
trade secret, license in or other intellectual property right or franchise right
of any person.
3.9 LITIGATION. There is no action, suit, proceeding, claim,
arbitration or investigation pending, or as to which ILOG or any of its
subsidiaries has received any notice of assertion nor, to ILOG's or ILOG, U.S.'s
knowledge, is there a threatened action, suit, proceeding, claim, arbitration or
investigation against ILOG or any of its subsidiaries which reasonably would be
likely to be material to ILOG or any of its subsidiaries, or which in any manner
challenges or seeks to prevent, enjoin, alter or delay any of the transactions
contemplated by this Agreement or the Ancillary Agreement. To the knowledge of
ILOG and ILOG, U.S., no governmental entity has at any time challenged or
questioned in writing the legal right of ILOG or any of its subsidiaries to
manufacture, offer, sell or license any of its products in the present manner or
versions thereof.
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3.10 CONSENTS AND ABSENCE OF CONFLICTS.
(a) Except as disclosed herein, each of ILOG or ILOG, U.S. has
the full power to purchase the Transferred Assets and to perform its other
obligations set forth herein or in the Ancillary Agreements without obtaining
the consent or approval of any person not a party to this Agreement or any
governmental authority.
(b) As of the Closing, neither the execution and delivery by
ILOG or ILOG, U.S. of the Agreements and Ancillary Agreements applicable to it,
the compliance by ILOG or ILOG, U.S. with the terms and conditions hereof nor
the consummation by ILOG or ILOG, U.S. of the transactions contemplated hereby
will (i) conflict with any of the terms, conditions and/or provisions of the
Statuts, Certificate of Incorporation, Bylaws or other equivalent governing
documents of ILOG or any of its subsidiaries, or as the case may be, (ii)
violate any provision of, or require any consent, authorization or approval
under, any law or regulation or any judicial or administrative order, award,
judgment, writ, injunction or decree or any governmental permit or license
issued to or applicable to ILOG or any of its subsidiaries, which in the case of
ILOG or ILOG, U.S. is material to the business or condition of ILOG or ILOG,
U.S. or to the transactions contemplated by this Agreement, or (iii) conflict
with, result in a breach of, constitute a default or event of default under, or
require any consent, authorization or approval under any contract, lien, or
instrument to which ILOG or any of its subsidiaries is a party or by which any
of them may be bound, which is material to the business or condition of ILOG and
its subsidiaries taken as a whole or to the transactions contemplated by this
Agreement.
3.11 NO FINDER. Neither Purchaser nor any person acting on its behalf
has paid or become obligated to pay, or taken any act which would obligate
Seller or any Shareholder to pay, any fee or commission to any broker, finder or
intermediary for or on account of the transactions contemplated by this
Agreement or the Ancillary Agreements.
3.12 REPRESENTATIONS COMPLETE. None of the representations and
warranties made by ILOG or ILOG, U.S. herein or in any Exhibits or certificate
furnished by ILOG or ILOG, U.S. or on their behalf, pursuant to this Agreement
or any Ancillary Agreement, contains or will contain any untrue statement of a
material fact, or omits to state any material fact required to be stated therein
or necessary in order to make the statements made, in the light of the
circumstances under which they were made, not misleading.
SECTION 4
AGREEMENTS, ARRANGEMENTS AND COVENANTS PRIOR TO THE CLOSING
From the date of execution of this Agreement until and including the
Closing:
4.1 FULL ACCESS. Each of ILOG and ILOG, U.S. and its counsel,
accountants, and other representatives shall have full access during normal
business hours to all properties, books, accounts,
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records, contracts, and documents of or relating to the Business. Seller shall
furnish or cause to be furnished to the Purchasers and their representatives all
data and information concerning the business, finances and properties of the
Business in Seller's possession that may reasonably be requested, subject to
Section 10.1 hereof.
4.2 CONDUCT OF BUSINESS. Seller and Shareholders shall operate and
carry on the Business only in the ordinary course and consistent with past
practice. Consistent with the foregoing, Seller shall keep and maintain its
assets in good operating condition and repair and will use its best reasonable
efforts consistent with good business practice to preserve the goodwill of the
suppliers, contractors, licensors, employees, customers, distributors and others
having business relations with Seller. Without limiting the generality of the
foregoing, except with the prior notification to, and the express written
approval of, ILOG or ILOG, U.S. (which approval shall not be unreasonably
withheld) Seller:
(a) will use its best efforts to preserve and maintain the
business and assets of the Business in their present condition, to keep
available to Seller its present officers and employees and to preserve Seller's
present relationships with suppliers, customers and other third parties with
respect to the Business;
(b) will not enter into any transaction or incur any liability
or obligation (absolute or contingent) with respect to the Business, except
transactions entered into, or liabilities or obligations incurred, in the
ordinary course of business;
(c) will not extend or modify the terms of any Assumed
Contract or Assumed License Agreement that (i) involves the payment of more than
$15,000 per year; and will not (ii) extend any such agreement, contract or
obligation for more than one year;
(d) will not establish any new, or modify any existing,
employee benefit, compensation or stock agreement, plan or arrangement, except
that Seller may pay one-time severance or termination bonuses to its employees;
(e) will not hire any employee or retain any consultant or
terminate any employee or any consulting agreement that relates to the Business
other than in the ordinary course of business or terminations of employees for
cause;
(f) will not transfer, waive or compromise any right or claim
of or pertaining to the Transferred Assets;
(g) will not issue any securities of any class of its capital
stock or grant any rights to any person to purchase any such securities;
(h) save in respect of the Reincorporation Merger, will not
make any change in its Articles of Incorporation or Bylaws or equivalent charter
documents;
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(i) save in respect of the Reincorporation Merger, will not
acquire or agree to acquire by merging or consolidating with, or by purchasing
any equity interest in or a material portion of the assets of, or by any other
manner, any business or any corporation, partnership interest, association or
other business organization or division thereof, or otherwise acquire or agree
to acquire any assets which are material, individually or in the aggregate, to
the business of Seller;
(j) will not make any grant of exclusive rights to any
third party;
(k) will not enter into any agreement, contract or commitment
containing any covenant limiting its freedom to engage in any line of business
or compete with any person;
(l) will not commence a lawsuit other than (i) for the routine
collection of bills, (ii) in such cases where it in good faith determines that
failure to commence suit would result in the material impairment of a valuable
aspect of its Business or material impairment or loss of a Seller Intellectual
Property Right or a material asset, provided that it consults with the ILOG or
ILOG, U.S. prior to the filing of such a suit, or (iii) for a breach or
threatened breach of this Agreement or any Ancillary Agreement;
(m) will not enter into any partnership arrangements, joint
ventures, joint development agreements, strategic partnership or alliances, or
other material contracts other than in the ordinary course of business
consistent with past practice, or violate, amend or otherwise modify or waive
any material contract; and
(n) will not permit to be taken any action or do or knowingly
permit to be done anything in the conduct of the Business which would be
contrary to or in breach of any of the terms or provisions of this Agreement or
any Ancillary Agreement, or which would cause any of the representations and
warranties of Seller and Shareholders contained herein to be or become untrue in
any material respect;
4.3 ADVICE OF DEVELOPMENTS AND NOTIFICATION OF CERTAIN MATTERS.
(a) Seller shall have a continuing obligation to and through
the Closing to advise ILOG of any and all matters or occurrences relating to the
value of the Transferred Assets or the present or future operation of the
Business, including, without limitation, any increased costs or development
problems, any difficulties with customers, generally or on specific projects,
any sales or marketing problems or decreases in selling prices or profitability
for products of the Business other than changes, matters, problems, costs or
occurrences affecting the economy generally.
(b) ILOG or ILOG, U.S. will give prompt notice to Seller, and
Seller will give prompt notice to ILOG or ILOG, U.S., of the occurrence, or
failure to occur, of any event, which occurrence or failure to occur would be
reasonably likely to cause (a) any representation or warranty contained in this
Agreement and made by it to be untrue or inaccurate in any material respect at
any time from the date of this Agreement to the Closing Date such that the
conditions set forth in Section 2 or 3, as the case may be, would not be
satisfied as a result thereof, or (b) any material
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failure of ILOG or ILOG, U.S. or Seller or Shareholders, as the case may be, or
of any officer, director, employee or agent thereof, to comply with or satisfy
any covenant, condition or agreement to be complied with or satisfied by it
under this Agreement or any Ancillary Agreement. Notwithstanding the above, the
delivery of any notice pursuant to this Section 4.3(b) will not limit or
otherwise affect the remedies available hereunder to the party receiving such
notice.
4.4 FURTHER PURCHASE OFFERS.
(a) Save in respect of the Reincorporation Merger, Seller and
Shareholders covenant and agree (in the case of Seller, on behalf of itself and
its respective employees, agents and representatives) that until the Closing
neither Seller nor any Shareholder will, directly or indirectly:
(i) solicit, initiate or encourage the
submission of inquiries, proposals or offers from any third party relating to
any acquisition or purchase of material assets (other than in the ordinary
course of business) of, or any equity interest in, Seller or any merger,
consolidation or other business combination involving the Business (each, an
"ACQUISITION PROPOSAL");
(ii) participate in any discussions or
negotiations regarding the foregoing;
(iii) authorize any officer or agent to do any of
the foregoing; or
(iv) otherwise cooperate in any way with, or
assist, facilitate, encourage, or participate in any effort or attempt by any
other person to do or seek any of the foregoing.
(b) Seller and the officers and directors of Seller will
immediately suspend any pre-existing discussions involving any Acquisition
Proposal. Seller will immediately communicate to ILOG and ILOG, U.S. the terms
of any inquiry, proposal, offer or contact with respect to any Acquisition
Proposal received after the date of this Agreement by any director or executive
officer of Seller.
4.5 EMPLOYEES. ILOG, U.S. hereby covenants and agrees to offer
employment to each individual who was an employee of Seller as of the instant
immediately prior to the Closing other than the Shareholders (the "SELLER
EMPLOYEES"), with salaries not less than those enjoyed by the Seller Employees
as of the Closing Date and as set forth on Schedule 2.15, and with benefits
being generally comparable to those in existence for ILOG, U.S. employees and,
with respect to such benefits, each Seller Employee shall, to the extent
permitted under such benefit plans, be given full credit for his or her prior
service with Seller, and ILOG, U.S. shall waive any pre-existing conditions,
waiting periods, or other restrictions based on length of service under ILOG,
U.S.'s benefits plans. ILOG, U.S. shall retain Seller Employees who accept such
offer. Seller understands that the individual components of the benefits package
offered to any such Seller Employee may vary. In addition, notwithstanding
anything in this Section 4.5 to the contrary, ILOG, U.S. makes no
representation, warranty or covenant and shall have no obligation as to the
continuing employment or level of responsibility of any Seller Employee so
hired. Seller shall not make any representations to any Seller Employee which is
inconsistent with this Section 4.5 and no Seller Employee shall have
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any rights as a third party beneficiary pursuant to this Agreement or any
Ancillary Agreement. ILOG, U.S.'s employment offers pursuant to this Section 4.5
shall be subject to any Seller Employee who accepts such offer agreeing to sign
the ILOG, U.S. Employment, Confidential Information and Invention Assignment
Agreement in standard form.
4.6 EMPLOYEE TAX MATTERS. ILOG, U.S. shall prepare and furnish to each
Seller Employee who accepts employment with ILOG, U.S., a Form W-2 which shall
reflect wages and compensation paid to the Seller Employee for that portion of
the calendar year after employment by ILOG, U.S. Seller shall prepare and
furnish to each Seller Employee a Form W-2 which shall reflect all wages and
compensation paid to the Seller Employee for that portion of the calendar year
in which the Closing Date occurs during which the Seller Employee was employed
by Seller.
4.7 BEST EFFORTS; FURTHER ASSURANCES; CONSENTS OF THIRD PARTIES. Each
of Seller, Shareholders, ILOG and ILOG, U.S. agree (i) to use its best
reasonable efforts to take or cause to be taken all reasonable actions as may be
necessary or advisable to consummate the transactions contemplated by this
Agreement and the Ancillary Agreements as soon as reasonably practicable, (ii)
to promptly file or supply, or cause to be filed or supplied, all material
applications, notifications and information required to be filed or supplied by
them pursuant to applicable requirements of laws in connection with the
transactions contemplated by this Agreement and the Ancillary Agreements and to
cooperate in good faith with each other in the preparation thereof and the
exchange of information with respect thereto, (iii) to use their best reasonable
efforts to obtain all consents, waivers, approvals, authorizations, permits,
orders, filings, registrations or qualifications of or with any governmental
body and all consents, approvals or authorizations of any other third party
consents required to be obtained by them for the consummation by them of the
transactions contemplated by this Agreement and the Ancillary Agreements
(including all consents of third parties required for valid assignment of the
Assumed Contracts to be assigned by Seller to ILOG or ILOG, U.S. at the
Closing).
SECTION 5
CONDITIONS PRECEDENT TO OBLIGATIONS OF ILOG AND ILOG, U.S.
The obligations of ILOG and ILOG, U.S. to consummate the transactions
contemplated by this Agreement are subject to the satisfaction, or waiver in
writing by ILOG and ILOG, U.S., at or before the Closing, of each of the
following conditions:
5.1 REPRESENTATIONS TRUE AND CORRECT. All representations and
warranties made by Seller and Shareholders in this Agreement and the Ancillary
Agreements or in any other document or certificate to be furnished by Seller or
Shareholders to ILOG or ILOG, U.S. at the Closing, shall be true and correct in
all material respects on the date hereof and on and as of the Closing Date as
though made on such date.
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5.2 COVENANTS PERFORMED. Seller and Shareholders shall have performed,
satisfied and complied in all material respects with all covenants, agreements
and conditions required by this Agreement and the Ancillary Agreements to be
performed, satisfied or complied with by them, or any of them, on or before the
Closing Date.
5.3 NO MATERIAL ADVERSE EFFECT. During the period from June 30, 1997 to
the Closing Date, there shall not have been any Material Adverse Effect on the
business, financial condition, results of operations or prospects of the
Business, and Seller shall not have sustained any material loss or damage to its
assets, whether or not insured, that materially affects its ability to conduct
the Business other than changes, matters, problems, costs or occurrences
affecting the economy generally.
5.4 CORPORATE ACTION. All corporate action necessary to authorize the
execution and delivery by Seller of this Agreement and the Ancillary Agreements,
and the performance by Seller of its obligations hereunder and thereunder shall
have been duly and validly taken by Seller, and Seller shall have delivered to
ILOG and ILOG, U.S. a certificate, dated the Closing Date and signed by the
Secretary or an Assistant Secretary of Seller, with respect to the resolutions
of the Board of Directors and the shareholders of Seller authorizing such
execution, delivery and performance of this Agreement and the Ancillary
Agreements.
5.5 INJUNCTIONS OR RESTRAINTS ON CONDUCT OF BUSINESS. No temporary
restraining order, preliminary or permanent injunction or other order issued by
any court of competent jurisdiction or other legal, contractual or regulatory
restraint provision limiting or restricting ILOG's or ILOG, U.S.'s conduct or
operation of its business or the business of Seller following the execution of
this Agreement, shall be in effect, nor shall any proceeding brought by an
administrative agency or commission or other governmental entity, domestic or
foreign, seeking the foregoing be pending.
5.6 NECESSARY CONSENTS. All necessary agreements and consents required
for the consummation of the transactions contemplated by this Agreement, which
for purposes of this Section 5.6 shall mean: (i) any governmental consent set
forth on Schedule 2.6; or (ii) any other consent deemed by ILOG and ILOG, U.S.
as reasonably necessary for ILOG or ILOG, U.S. to acquire all right, title and
interest held by the Seller in the Transferred Assets, or otherwise pertaining
to the matters covered by this Agreement and the Ancillary Agreements, shall
have been obtained by Seller or Shareholders, as the case may be, and delivered
to ILOG or ILOG, U.S. and accepted by ILOG or ILOG, U.S. as satisfactory. For
purposes of paragraph (ii) of this Section 5.6, a "reasonably necessary" consent
shall mean any consent, the absence of which would have a Material Adverse
Effect on ILOG or ILOG, U.S.
5.7 EMPLOYEE AGREEMENTS. Each of Shareholders shall have executed
employment agreements with ILOG, U.S. substantially in the form set forth in
Exhibit E (i), (ii) and (iii) hereto (the "EMPLOYMENT AGREEMENTS").
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5.8 ASSET CONTRIBUTION AGREEMENT. Each of Seller and Shareholders shall
have executed the Asset Contribution Agreement and the conditions precedent to
the obligations of ILOG to consummate the transactions contemplated by such
agreement shall have been satisfied or waived in writing by ILOG.
5.9 SELLER INTELLECTUAL PROPERTY ACTIONS. Seller shall have taken all
actions reasonably practicable to be taken prior to Closing with respect to
maintaining, perfecting or renewing Seller Intellectual Property Rights as may
be requested by ILOG or ILOG, U.S. including, but not limited to, the execution
of agreements relating to the assignment of Seller copyrights pursuant to an
agreement substantially in the form set forth on Exhibit F hereto (the
"COPYRIGHT ASSIGNMENT"), the assignment of Seller's Trademark pursuant to an
agreement substantially in the form set forth on Exhibit G hereto (the
"TRADEMARK ASSIGNMENT"); and the assignment of Seller's Internet Domain Name
pursuant to an agreement substantially in the form set forth on Exhibit H hereto
(the "INTERNET DOMAIN NAME TRANSFER AGREEMENT");
5.10 CPLEX LICENSE AGREEMENT. Mr. Robert Bixby shall have executed and
delivered to Seller and Seller shall have executed a license agreement
substantially in the form set forth in Exhibit I hereto (the "CPLEX LICENSE
AGREEMENT").
5.11 TECHNOLOGY ACCESS LETTER. ILOG and Mr. Robert Bixby shall have
executed the Technology Access Letter substantially in the form set forth on
Exhibit J hereto (the "TECHNOLOGY ACCESS LETTER").
5.12 TRANSFER OF TRANSFERRED ASSETS. Seller and Shareholders shall have
validly and effectively transferred to ILOG or ILOG, U.S. the Transferred Assets
in accordance with this Agreement free and clear of any Encumbrances and Seller
shall have executed all the Conveyance Documents in connection therewith and
each of ILOG and ILOG, U.S. and their counsel shall be satisfied that the
Reincorporation Merger shall be effective to vest in Merger Subsidiary as Seller
under this Agreement and the Ancillary Agreements all right, title and interest
to the Transferred Assets such that the same may be effectively transferred to
ILOG or ILOG, U.S. pursuant to this Agreement and the Ancillary Agreements.
5.13 INVESTMENT REPRESENTATIONS. Each of Seller and Shareholders shall
have executed Investment Representations substantially in the form annexed
hereto as Exhibit K (the "INVESTMENT REPRESENTATIONS").
5.14 AUDITED FINANCIAL STATEMENTS. Each of ILOG and ILOG, U.S.
shall have received a duly audited copy of the Seller Financial Statements.
5.15 OFFICERS' AND SHAREHOLDERS'S CERTIFICATES. Purchaser shall have
received a certificate, dated the Closing Date, signed by each Shareholder and
by Seller's president and chief executive officer (in such capacities)
certifying, in such detail as Purchaser and its counsel may reasonably request,
that the conditions set forth in this Section 5 have been fulfilled.
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5.16 GOOD STANDING CERTIFICATES; TAX CERTIFICATE. Purchaser shall have
received certificates as to the good standing of Seller for Nevada and Texas and
any other state in which Seller conducts the Business and is qualified to do
business.
5.17 OPINION OF SELLER'S COUNSEL. Purchaser shall have received an
opinion from Porter and Hedges, counsel for Seller and Shareholders, dated the
Closing Date, in substantially the form attached hereto as Exhibit L.
5.18 APPROVAL OF DOCUMENTATION. The form and substance of all
certificates, instruments, opinions and all other documents delivered to
Purchaser by Seller and Shareholders under this Agreement and each Ancillary
Agreement shall be satisfactory in all reasonable respects to Purchaser and its
counsel.
SECTION 6
CONDITIONS PRECEDENT TO OBLIGATIONS OF
THE SELLER AND SHAREHOLDERS
The obligations of Seller and Shareholders to consummate the
transactions contemplated by this Agreement are subject to the satisfaction or
waiver in writing by Seller and Shareholders, at or before the Closing, of each
of the following conditions:
6.1 REPRESENTATIONS TRUE AND CORRECT. All representations and
warranties made by ILOG or ILOG, U.S. in this Agreement and the Ancillary
Agreements, or in any other document or certificate to be furnished by ILOG or
ILOG, U.S. under this Agreement, shall be true and correct in all material
respects on the date hereof and on and as of the Closing Date as though made on
such date.
6.2 COVENANTS PERFORMED. Each of ILOG and ILOG, U.S. shall have
performed, satisfied and complied in all material respects with all covenants,
agreements and conditions required by this Agreement and the Ancillary
Agreements to be performed, satisfied or complied with by ILOG or ILOG, U.S. on
or before the Closing Date.
6.3 NO MATERIAL ADVERSE EFFECT. During the period from June 30, 1997 to
the Closing Date, there shall not have been any Material Adverse Effect on the
business, financial condition, results of operations or prospects of ILOG.
6.4 CORPORATE ACTION. All corporate action necessary to authorize the
execution and delivery by ILOG or ILOG, U.S. of this Agreement and the Ancillary
Agreements, and the performance by each of ILOG or ILOG, U.S. of its respective
obligations hereunder and thereunder, shall have been duly and validly taken by
ILOG or ILOG, U.S., as the case may be, and ILOG shall have delivered to Seller
certificates, dated the Closing Date and signed by the Secretary or an Assistant
Secretary of the respective Purchasers with respect to the resolutions of the
Board of
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Directors and Shareholders of ILOG and the Board of Directors of ILOG, U.S.
authorizing such execution, delivery and performance of this Agreement and the
Ancillary Agreements.
6.5 INJUNCTIONS OR RESTRAINTS ON CONDUCT OF BUSINESS. No temporary
restraining order, preliminary or permanent injunction or other order issued by
any court of competent jurisdiction or other legal, contractual or regulatory
restraint provision limiting or restricting ILOG's or ILOG, U.S.'s conduct or
operation of its business or the business of Seller, following the execution of
this Agreement, shall be in effect, nor shall any proceeding brought by an
administrative agency or commission or other governmental entity, domestic or
foreign, seeking the foregoing be pending.
6.6 EMPLOYMENT AGREEMENTS. ILOG, U.S. shall have executed the
Employment Agreements with each of the Shareholders;
6.7 BOARD APPOINTMENTS. Each of Mr. Todd Lowe and Mr. Robert Bixby
shall have been elected as a member of the ILOG Board of Directors for a three
year term; such elections shall be valid and effective as of the Closing Date in
accordance with the ILOG Statuts and under French law.
6.8 STOCK OPTION GRANTS.
(a) Shareholder Options. ILOG shall have granted to the
Shareholders in aggregate 800,000 options under the 1996 ILOG Stock Option Plan,
such grants to be made effective as of the Closing Date and substantially in the
form of the Notice of Grant and Stock Option Agreement set forth on Exhibit M
hereto.
(b) Employee Options. ILOG shall have granted to the Seller
Employees listed in Exhibit N hereto that shall have accepted offers to become
employees of ILOG, U.S., that number of options set forth opposite each such
employee's name for an aggregate amount of 300,000 ILOG shares, such grants to
be made effective as of the Closing Date and in accordance with the standard
terms and conditions of the 1996 ILOG Stock Option Plan.
6.9 ASSET CONTRIBUTION AGREEMENT. ILOG shall have executed the Asset
Contribution Agreement and the conditions precedent to the obligations of Seller
and Shareholders to consummate the transactions contemplated by such Agreement
shall have been satisfied or waived in writing by the ILOG.
6.10 TECHNOLOGY ACCESS LETTER. ILOG shall have executed the
Technology Access Letter.
6.11 REGISTRATION RIGHTS. ILOG shall have executed a Registration
Rights Agreement pursuant to which each Shareholder shall have been granted
registration rights, pari passu, to those registration rights currently
outstanding under ILOG's existing Registration Rights Agreement, a copy of which
has been delivered to Seller and Shareholders.
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6.12 PAYMENT OF PURCHASE PRICE. The Purchasers shall have paid the
Initial Payment, and ILOG shall have delivered the Promissory Notes and issued
the Consideration Shares delivered to Seller in the form of American Depositary
Shares and Purchasers shall have assumed the Assumed Liabilities.
6.13 OPINION OF COUNSEL. Seller shall have received an opinion from
Wilson Sonsini Goodrich & Rosati, Professional Corporation, counsel for
Purchaser, dated the Closing Date, in substantially the form attached hereto as
Exhibit O.
6.14 OPINION OF FRENCH COUNSEL. Seller shall have received an opinion
from Stibbe Simont Monahan Duhot & Giroux, French counsel for ILOG, dated the
Closing Date, in substantially the form attached hereto as Exhibit P.
6.15 OFFICERS' CERTIFICATE. Seller and Shareholders shall have received
certificates, dated the Closing Date, signed by each of ILOG's and ILOG, U.S.'s
chief executive officer or its chief financial officer (in such capacity)
certifying, in such detail, as Seller and Shareholders and their counsel may
reasonably request, that the conditions set forth in this Section 6 have been
fulfilled.
6.16 APPROVAL OF DOCUMENTATION. The form and substance of all
certificates, instruments, and all other documents delivered to Seller and
Shareholders by Purchaser under this Agreement shall be reasonably satisfactory
to Seller, Shareholders and their counsel.
6.17 DEPOSITARY ARRANGEMENT. Morgan Guaranty Trust Company of New York
(the "DEPOSITARY") shall have furnished to the Seller confirmation satisfactory
to Seller to the effect that the Consideration Shares have been deposited with
it in the form of American Depositary Shares pursuant to the deposit agreement
dated as of February 13, 1997, between ILOG and the Depositary (the "DEPOSIT
AGREEMENT").
SECTION 7
THE CLOSING
7.1 THE CLOSING. Subject to satisfaction or waiver of the conditions
precedent to the obligations of the parties hereto and the execution and
delivery of this Agreement and the Ancillary Agreements, the sale of the
Transferred Assets (the "CLOSING") shall take place at the offices of Wilson
Sonsini Goodrich & Rosati at 650 Page Mill Road, Palo Alto, California, on
August 20 at 6:00 a.m. local time, or at such other time and place as the
parties may agree (the "CLOSING DATE").
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7.2 DELIVERIES AT THE CLOSING. At the Closing, (i) Seller and
Shareholders will deliver the various certificates, instruments and documents
referred to in Section 5; (ii) ILOG and/or ILOG, U.S. will deliver the various
certificates, instruments and documents referred to in Section 6; (iii) Seller
will execute, acknowledge and deliver to ILOG or ILOG, U.S., the Conveyance
Documents; and (iv) ILOG and/or ILOG, U.S. will deliver to Seller the Purchase
Price in the form of the Initial Payment, and ILOG will deliver the executed
Promissory Notes and the Consideration Shares in the form of American Depositary
Shares and each of ILOG or ILOG, U.S. will execute and deliver a certificate or
other instruments of assumption by which it assumes the Assumed Liabilities of
Seller as Seller's counsel may reasonably request.
SECTION 8
OBLIGATIONS OF THE PARTIES AFTER CLOSING
8.1 SURVIVAL OF REPRESENTATIONS, WARRANTIES AND COVENANTS. The
representations, warranties and covenants of each of Seller, Shareholders, ILOG
and ILOG, U.S., as the case may be, contained in this Agreement, in any
Ancillary Agreement or in any certificate, document or instrument delivered
pursuant hereto or thereto, shall survive the Closing for a period of one (1)
year; provided, however, that any claim does not have to be resolved within such
one year period and provided further that the representations and warranties and
covenants with respect to liabilities for Taxes shall survive until expiration
of all applicable statutes of limitations.
8.2 INDEMNIFICATION BY SELLER AND SHAREHOLDERS. Subject to the
remaining provisions of this Section 8.2, Seller and each Shareholder shall
indemnify and hold ILOG and ILOG, U.S. harmless and ILOG or ILOG, U.S. shall
indemnify and hold Seller and Shareholders harmless, from and after the Closing
Date from and against any claims, demands, losses, costs, expenses, obligations,
liabilities, damages, recoveries, and deficiencies, including interest,
penalties and attorney's fees ("DAMAGES") incurred or suffered by any of them,
directly or indirectly, as a result of, or arising from (i) any inaccuracy in
any of the representations and warranties made herein by any of them, (ii) any
breach of any covenant or agreement made herein by any of them, (iii) any
Excluded Liability, and (iv) the operations of Seller, ILOG or ILOG, U.S. as the
case may be prior to the Closing Date. Such indemnification shall be joint and
several as among Seller and Shareholders with respect to indemnification of ILOG
or ILOG, U.S., and as among ILOG and ILOG, U.S. with respect to indemnification
of Seller and Shareholders.
8.3 INDEMNIFICATION FOR THIRD PARTY CLAIMS.
(a) A party (the "INDEMNIFIED PARTY") wishing to claim
indemnification under Section 8.2 upon learning of any claim, action, suit,
proceeding or investigation as to which it wishes to be indemnified pursuant to
Section 8.2, shall notify the party or parties obligated to provide
indemnification (the "INDEMNIFYING PARTY") pursuant to Section 8.2 promptly;
provided, however, that no failure so to notify the Indemnifying Party will
relieve the Indemnifying Party of any obligation to indemnify the Indemnified
Party unless and except to the extent such failure so to
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notify prejudices the position of the Indemnifying Party in responding to such
claim action, suit or proceeding.
(b) If the facts giving rise to any indemnification provided
for in Section 8.2 involve any actual or threatened claim or demand by any
person other than the Indemnified Party, the Indemnified Party shall, by written
notice given to the Indemnifying Party within twenty (20) days after giving
notice of such claim pursuant to Section 8.3(a), to either (i) in the case of
certain third party claims as set forth in Section 8.3(e), assume the obligation
of negotiating a settlement of such claim with the third party or (ii) tender to
the Indemnifying Party the defense or prosecution of such claim and any
litigation resulting therefrom and through counsel of the Indemnifying Party's
own choosing, subject to the terms of Section 8.3 (c) or 8.3(d), as the case may
be.
(c) If the defense or prosecution of a third party claim is
tendered by the Indemnified Party to the Indemnifying Party pursuant to Section
8.3(b)(ii) and is subsequently assumed by the Indemnifying Party, the
Indemnified Party shall be entitled, at its own expense, to participate in such
settlement or defense through counsel chosen by the Indemnified Party. If the
Indemnifying Party assumes the defense or prosecution of such claim or
litigation, it will take all steps reasonably necessary in the defense,
prosecution or settlement of such claim or litigation and will hold the
Indemnified Party harmless from and against all Damages caused by or arising out
of any settlement thereof approved by the Indemnified Party (which approval
shall not be unreasonably withheld) or any judgment in connection therewith
(other than the Indemnified Party's expenses of participation in such defense,
prosecution or settlement). The Indemnifying Party may not, in the defense or
prosecution of any suit, claim, action or proceeding the defense of which the
Indemnifying Party has assumed, except with the written consent of the
Indemnified Party, consent to the entry of any judgment or enter into any
settlement (i) which does not include as an unconditional term thereof the
giving to the Indemnified Party by the third party of a full and final release
from all liability in respect of such suit, claim, action or proceeding or (ii)
which shall limit, restrict or otherwise affect the right of the Indemnified
party to carry on or conduct its business (then or in the future), or require
any payment to be made by the Indemnified Party or limit, restrict, make more
expensive or less profitable or otherwise adversely affect the manner in which
the Indemnified Party carries on or conducts its business (then or in the
future).
(d) If the Indemnifying Party does not assume the defense or
prosecution of any claim or litigation tendered to it pursuant to Section
8.3(b)(ii), the Indemnified Party may defend or prosecute such claim or
litigation in such manner as it may deem appropriate (in which case legal
expenses of the Indemnified Party's counsel shall be at the expense of the
Indemnifying Party) and the Indemnified Party may settle such claim or
litigation after giving written notice thereof (and reasonable opportunity to
respond) to the Indemnifying Party, on such terms as the Indemnified Party may
deem appropriate; and the Indemnifying Party will promptly reimburse the
Indemnified Party for the Damages incurred as a result of such settlement for
which the Indemnified Party is entitled to be indemnified. If no such settlement
of such claim or litigation is made, the Indemnifying Party will promptly
reimburse the Indemnified Party for the Damages arising out of any judgment
rendered with respect to such claim or such litigation for which the Indemnified
Party has not been so reimbursed pursuant thereto; provided, however, that if
such judgment is appealable and the
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Indemnified Party notifies the Indemnifying Party of its intention not to
appeal, the Indemnifying Party may prosecute such appeal, at its sole cost and
expense and subject to the obligations set forth herein. Any expenses for which
the Indemnified Party is entitled to reimbursement hereunder shall be paid by
the Indemnifying Party as incurred.
(e) With respect to third party claims or demands which relate
to or are likely to affect the Indemnified Party's business (as determined in
the reasonable judgment of the Indemnified Party), including, without
limitation, the Indemnified Party's relationships with customers, the
Indemnified Party shall have the right to make the election referred to in
Section 8.3(b)(i). If such election is made, the Indemnified Party may employ
counsel at its own expense; provided, however, that no settlement of any such
claim with third party claimants or the costs incurred in reaching such
settlement shall be determinative of the liability of the Indemnifying party to
the Indemnified Party pursuant to this Section 8 unless the Indemnifying Party
has consented in advance to such settlement.
8.4 PROCEDURES FOR ASSERTING CLAIMS.
(a) The Indemnified Party shall give written notice to the
Indemnifying Party of any claim for Damages for which the Indemnified Party
claims a right of indemnification under Section 8.2 (a "CLAIM NOTICE") at any
time prior to the first anniversary of the Closing Date but not thereafter save
in respect of liability for Taxes as set forth in Section 8.1 hereof. If known
to the Indemnified Party, any such Claim Notice shall include (i) a summary
description of the facts upon which such claim is based and shall specify the
estimated amount of the Damages thereof and (ii) the amount which is payable to
the Indemnified Party pursuant to Section 8.2.
(b) The Indemnifying Party shall have thirty (30) days
following delivery of the Claim Notice to make such investigation of the claim
as it deems necessary or desirable. In connection with the Indemnifying Party's
evaluation of any Claim Notice, the Indemnified Party shall, at the Indemnifying
Party's expense, provide the Indemnifying Party with reasonable access to the
books and records of the Indemnified Party and, subject to the implementation of
reasonable procedures to protect the confidentiality of such information, supply
such factual and technical information as the Indemnifying Party may reasonably
require in connection with the evaluation of such Claim Notice. On or prior to
the expiration of such 30-day period, the Indemnifying Party shall, by written
notice to the Indemnified Party (a "RESPONSE NOTICE"), either (a) admit
liability in whole, or (b) admit that the claim is so covered by Section 8.2 but
dispute the amount of the claim, or (c) dispute that any amount of the claim is
so covered. The failure of the Indemnifying Party to deliver to the Indemnified
Party a Response Notice in accordance with and within the permitted time period
shall be deemed an admission of liability for the loss as set forth in the Claim
Notice.
(c) If any dispute arises with respect to this Agreement or
any Ancillary Agreement, then the Indemnifying Party and the Indemnified Party
shall use their best efforts to resolve such dispute. In the event the
Indemnifying Party and the Indemnified Party resolve the dispute, they shall
both execute a memorandum setting forth such resolution and, if applicable, the
amount of any Damages payable to the Indemnified Party. Any legal action or
proceeding regarding such dispute shall proceed in accordance with the terms of
Section 11.6.
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8.5 OFFSET AGAINST PROMISSORY NOTES.
(a) Each of ILOG's and/or ILOG, U.S.'s sole remedy with
respect to any Damages for which it is entitled to indemnification pursuant to
this Section 8 shall be to offset such Damages against the amount of outstanding
principal and accrued interest on the Promissory Notes up to a maximum amount of
Three Million Dollars ($3,000,000) in aggregate. Any such offset shall be
applied against each of the Promissory Notes in proportion to their respective
original principal amounts. Any such offset shall be first made against
interest, and then against the earliest due principal under the Promissory
Notes. For the avoidance of doubt, any indemnity for Damages due to ILOG, U.S.
hereunder shall be deemed assigned to ILOG which may offset such Damages against
the Promissory Notes pursuant to this Section 8.5. If the Purchaser elects to
exercise its right of set off against the Promissory Notes, and if it is
subsequently determined by judicial proceedings or admission of the Purchaser
that the Purchaser shall not have been entitled to set-off all or any portion of
the amount applied as a set-off against the Promissory Notes, then (i) any
amount improperly set off against the Promissory Notes shall bear interest at
the rate of 15% per annum from the date it shall have been due and payable under
the terms of the Promissory Notes until the date paid by the Purchaser, and (ii)
the Purchaser shall pay all reasonable attorney's fees and other direct,
out-of-pocket costs of collection (herein collectively called "COLLECTION
COSTS") incurred by the holder of the Promissory Notes in connection with the
collection of any amount improperly set-off against the Promissory Notes,
provided however, that the Collection Costs for which the Purchaser shall be
liable shall be limited to that portion thereof which bears the same
relationship to the total Collection Costs as the amount improperly set-off
against the Promissory Notes bears to the total amount set-off against the
Promissory Notes and disputed by the holder or holders thereof.
(b) Notwithstanding anything to the contrary set forth above,
and in addition to all other obligations and indemnities of Seller and the
Shareholders hereunder, Sellers and Shareholders hereby do, and agree, to,
without limit, jointly and severally indemnify and hold harmless ILOG and ILOG,
U.S., from and after the Closing Date through the end of time, from and against
any and all claims, demands, losses, costs, expenses, obligations, liabilities,
damages, recoveries, and deficiencies, including interest, penalties and
attorney's fees, as incurred or suffered by ILOG or ILOG, U.S. or any customer
or licensee of ILOG or ILOG, U.S., directly or indirectly, as a result of,
arising from, or related to any software or technology owned by, licensed or
assigned by any of Roy Marsten, David Shanno or Irvin Lustig with respect to the
"Exclusive License Agreements" dated January 4, 1993 and the "Buyout and
Termination Agreements," dated as of July 17, 1997, not being fully transferred
as between each of such persons and Seller provided, however, that ILOG and/or
ILOG, U.S., shall have made all payments required to be made under the aforesaid
Buyout and Termination Agreements.
8.6 SELLER AND SHAREHOLDER MAXIMUM REMEDY. Seller and/or Shareholders'
right to indemnification for Damages pursuant to this Section 8 shall be limited
to a maximum aggregate amount of Five Million Dollars ($5,000,000).
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8.7 POST-CLOSING DATE ACCESS TO INFORMATION. If, after the Closing, in
order properly to prepare documents or reports required to be filed with
governmental authorities or with its financial statements, it is necessary that
ILOG, ILOG, U.S. or Seller be furnished with additional information relating to
the Transferred Assets and such information is in possession of the other party,
such other party will furnish, or cause to be furnished, such information to the
requesting party. Each of ILOG and ILOG, U.S. agrees to maintain and retain
financial and accounting information relating to the Business for periods prior
to the Closing provided to it by Seller for a period of six (6) years from the
Closing Date.
8.8 USE OF CPLEX NAME AND LOGO. Within thirty (30) days after the
Closing, Seller will amend its Articles of Incorporation to change its corporate
name. Seller will discontinue use of the name "CPLEX" for all uses within ninety
(90) days after the Closing. Effective upon and subject to the Closing, Seller
hereby grants to Purchaser a fully paid, exclusive and perpetual worldwide
license to use Seller's logo shown on Schedule 2.9.
8.9 COVENANT NOT TO COMPETE.
(a) Competition. Unless the obligations of each Shareholder
under this Section 8.9(a) shall have been waived in writing by ILOG, U.S., no
Shareholder shall, within the United States or elsewhere, during the
Non-Competition Period (as defined below) directly or indirectly, own, manage,
operate, join, control or participate in or be connected with, as an officer,
employee, agent, consultant, partner, stockholder or otherwise, any business,
individual, partnership, firm or corporation (an "ENTITY"), which competes
within the United States with the business of ILOG, U.S., or any subsidiary or
affiliate (as defined in the General Rules and Regulations promulgated under the
Securities Exchange Act of 1934, as amended) thereof, as such business is
conducted or as such business is proposed by ILOG, U.S. to be conducted on an
extended relational basis as the business now conducted by ILOG, U.S. within the
Non-Competition Period. Nothing herein, however, shall prohibit Shareholder from
acquiring or holding any issue of stock or securities of any Entity which has
any securities listed on a national securities exchange or quoted in the daily
listings of over-the-counter market securities, provided that at any one time he
and members of his immediate family do not own in the aggregate more than one
percent (1%) of any voting securities of any such Entity. The term
"NON-COMPETITION PERIOD" as used herein means the five-year period commencing on
the Closing Date.
(b) Nonsolicitation. Each Shareholder agrees that, during the
Non-Competition Period, Shareholder shall not, either directly or indirectly,
solicit, induce, recruit or encourage any of ILOG, U.S.'s employees (or any
subsidiary or affiliate employees of ILOG, U.S.) to leave their employment, or
take away such employees, or attempt to solicit, induce, recruit, encourage or
take away employees of ILOG, U.S., either on behalf of Shareholder or any other
person or entity.
8.10 RULE 144 REPORTS AND RESTRICTED SECURITIES. For as long as the
Seller or the Shareholders are required to comply with Rule 144 under the
Securities Act of 1933, as amended, in order to sell shares of ILOG to the
public without registration, ILOG will use its best reasonable
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efforts to make available to Seller or Shareholders the benefit of rules and
regulations of the SEC which may permit Seller or Shareholders to sell shares of
ILOG to the public without registration by:
(i) making and keeping "current public information"
"available" (as both those terms are defined in Rule 144 at
all times; and
(ii) timely filing with the SEC, in accordance with
all applicable rules and regulations, all reports and other
documents (x) required of ILOG pursuant to Rule 144, as it may
be amended from time to time (or any rule, regulation, or
statute replacing Rule 144) to be available and (y) required
to be filed under Section 15d of the Securities Exchange Act
of 1934, even if ILOG's duty to file those reports or
documents may be suspended or otherwise terminated under the
express terms of Section 15d.
8.11 FURTHER ASSURANCES. At the request and expense of ILOG or ILOG,
U.S., and without further consideration, Seller and Shareholders agree to
execute after the Closing Date such documents and instruments and to do such
further acts as may be reasonably necessary or desirable to perfect ILOG's or
ILOG, U.S.'s title to the Transferred Assets.
SECTION 9
TERMINATION
9.1 TERMINATION. This Agreement may be terminated before the Closing:
(a) at any time by mutual written agreement of Seller and
Purchaser;
(b) by Seller or ILOG or ILOG, U.S., if in the case of Seller,
Seller is not in default hereunder, or, in the case of ILOG or ILOG, U.S., ILOG
or ILOG, U.S. is not in default hereunder, by giving written notice of such
termination on the Closing Date to the other party if, as of the Closing Date,
any condition precedent to the obligations of the party giving such notice shall
not have been fulfilled and cannot be fulfilled by September 30, 1997, and shall
not have been waived by such party;
(c) at any time after September 30, 1997, if the Closing has
not been consummated, by Seller, ILOG or ILOG, U.S., unless the party giving
notice is in default hereunder.
9.2 EFFECT OF TERMINATION. In the event this Agreement is validly
terminated pursuant to Section 9.1, the Asset Contribution Agreement shall also
be deemed simultaneously and automatically terminated and (i) the Asset
Contribution Agreement, this Agreement and each other Ancillary Agreement shall
forthwith have no further force and effect except for Seller's,
Shareholders', ILOG's and ILOG, U.S.'s respective obligations set forth in
Sections 9 and 10 hereof,
-36-
<PAGE> 43
and (ii), neither ILOG, ILOG, U.S., Seller nor Shareholders will have any
obligation or liability to the other, except as set forth in clause (i)
above and except that termination shall be without prejudice to other rights
and remedies which any party may have if (a) a default shall be made by the
other party in the observance or in the due and timely performance by such
party of the covenants herein contained, or (b) there shall have been a breach
by the other party of any of the warranties and representations herein
contained.
SECTION 10
CONFIDENTIALITY
10.1 CONFIDENTIALITY. ILOG, ILOG, U.S., Seller and Shareholders hereby
confirm the continued effectiveness in accordance with its terms of the
Confidentiality Agreement, dated June 12, 1997, between ILOG and Seller except
as set forth in Section 10.2 below and except that such Confidentiality
Agreement shall terminate and be of no further force or effect upon the Closing.
10.2 PUBLIC ANNOUNCEMENTS. Except as required by applicable law, no
party hereto shall disclose, or permit their respective officers,
representatives, agents or employees to disclose the existence or terms of this
Agreement or any Ancillary Agreement to any third party without the prior
written consent of all other parties hereto, which consent shall not be
unreasonably withheld. The parties hereto will mutually agree in advance on the
form, timing and contents of announcements and disclosures regarding the
transactions contemplated by this Agreement or any Ancillary Agreement.
Following the Closing Date, ILOG and ILOG, U.S. shall have the right to make
public disclosures of the terms of this Agreement or any Ancillary Agreement and
the consummation of the transactions contemplated hereby without the written
consent of Seller or Shareholders.
SECTION 11
GENERAL PROVISIONS
11.1 PAYMENT OF COSTS. ILOG and ILOG, U.S. shall pay all costs and
expenses incurred or to be incurred by each of them in negotiating and preparing
this Agreement and the Ancillary Agreements and in effecting the consummation of
the transactions referred to hereunder and thereunder. Seller and Shareholders
shall pay all such costs and expenses incurred by Seller and Shareholders. ILOG
shall bear the costs of the preparation and the audit of the Seller's Financial
Statements and the costs of any appraisal of the Transferred Assets.
11.2 ENTIRE AGREEMENT; WAIVERS.
(a) This Agreement and the Ancillary Agreements supersede all
prior discussions and agreements between the parties hereto with respect to the
subject matter hereof and this Agreement and the Ancillary Agreements and other
documents delivered in connection herewith
-37-
<PAGE> 44
constitute the entire agreement between the parties pertaining to the
contemporaneous agreements, representations, and understandings of the parties.
No supplement, modification, or amendment of this Agreement or any Ancillary
Agreement shall be binding unless executed in writing by all the parties. No
waiver of any of the provisions of this Agreement or any Ancillary Agreement
shall be deemed, or shall constitute, a waiver of any other provision, whether
or not similar, nor shall any waiver constitute a continuing waiver. No waiver
shall be binding unless executed in writing by the party making the waiver.
(b) The Asset Contribution Agreement is intended only to
confirm certain of the transactions contemplated in this Agreement and is not
intended to create any independent or different rights or obligations on the
part of ILOG, Seller or Shareholders. In the event of any conflict between the
Asset Contribution Agreement and this Agreement, the provisions of the Agreement
will govern.
(c) Each of the Exhibits, Schedules and other documents
attached to this Agreement is incorporated herein by reference as if set forth
in full herein.
11.3 SUCCESSORS AND ASSIGNS. This Agreement and the Ancillary
Agreements shall be binding on, and shall inure to the benefit of, the parties
to it and their respective permitted successors, and assigns.
11.4 EFFECT OF HEADINGS. The subject headings of the Section and
subparagraphs of this Agreement are included for purposes of convenience only,
and shall not affect the construction of any of its provisions.
11.5 NOTICES. All notices, requests, demands, and other communications
under this Agreement shall be in writing and shall be served (i) personally on
the party to whom notice is to be given, or (ii) by certified mail, return
receipt requested, postage prepaid, and properly addressed as follows:
To Seller;
Todd A. Lowe
and/or Janet Lowe: CPLEX Optimization, Inc.
Suite 279
930 Tahoe Blvd., Bldg. 802
Incline Village, Nevada 89451
To Robert Bixby: Robert Bixby
6020 Annapolis
Houston, Texas 77005
-38-
<PAGE> 45
To ILOG S.A. ILOG S.A.,
9 rue du Verdun
94253 Gentilly, FRANCE
Attention: Chief Financial Officer
To ILOG, U.S.: ILOG, Inc.
1901 Landings Drive
Mountain View, California 94043
Attention: Chief Financial Officer
With respect to any
notice to ILOG
or ILOG, U.S.,
with a copy to: Francis S. Currie, Esq.
Wilson Sonsini Goodrich & Rosati
650 Page Mill Road
Palo Alto, California 94304-1050
Any party may change its address for purposes of this paragraph by giving notice
of the new address to each of the other parties in the manner set forth above.
11.6 GOVERNING LAW; SUBMISSION TO JURISDICTION.
(a) This Agreement and the rights and obligations of the
parties hereunder shall be construed in accordance with and be governed by the
laws of the State of Delaware (without giving effect to the principles thereof
relating to conflicts of law).
(b) Any legal action or proceeding with respect to this
Agreement and any action for enforcement of any judgment in respect thereof
shall be brought in the Federal Court, District of Northern California in San
Jose, and, by execution and delivery of this Agreement, each of the parties
hereto hereby accepts for itself and in respect of its property, generally and
unconditionally, the exclusive jurisdiction of the aforesaid courts and
appellate courts. Each of the parties hereto irrevocably consents to the service
of process out of any of the aforementioned courts in any such action or
proceeding by the mailing of copies thereof by registered or certified mail,
postage prepaid, to such party at its address set forth in Section 11.6. Each of
the parties hereto hereby irrevocably waives any objection which it may now or
hereafter have to be laying of venue of any of the aforesaid actions or
proceedings arising out of or in connection with this Agreement or the Ancillary
Agreements brought in the courts referred to above and hereby further
irrevocably waives and agrees not to plead or claim in any such court that any
such action or proceeding brought in any such court has been brought in an
inconvenient forum.
(c) Any judgments or other awards of monetary damages arising
out of any legal action or proceeding pursuant to this Section 11.6 shall be
payable in United States currency.
-39-
<PAGE> 46
11.7 PARTIES IN INTEREST. Except as expressly provided hereunder,
nothing in this Agreement or any of the Ancillary Agreements, express or
implied, is intended to confer any rights or remedies under or by reason of this
Agreement or any of the Ancillary Agreements on any persons other than the
parties to it and their respective and permitted successors and assigns, nor is
anything in this Agreement or any of the Ancillary Agreements intended to
relieve or discharge the obligation or liability of any third persons to any
party to this Agreement or any of the Ancillary Agreements, nor shall any
provision give any third persons any right of subrogation or action against any
party to this Agreement or any of the Ancillary Agreements.
11.8 INVALID PROVISIONS. If any provision of this Agreement or any
Ancillary Agreement is held to be illegal, invalid, or unenforceable under any
present or future law, (a) such provisions will be fully severable; (b) this
Agreement or the applicable Ancillary Agreement, as the case may be, will be
construed and enforced as if such illegal, invalid, or unenforceable provision
had never comprised a part hereof; (c) the remaining provisions of this
Agreement or the applicable Ancillary Agreement, as the case may be, will remain
in full force and effect and will not be affected by the illegal, invalid, or
unenforceable provision or by its severance herefrom; and (d) in lieu of such
illegal, invalid, or unenforceable provision, there will be added automatically
as a part of this Agreement or the applicable Ancillary Agreement, as the case
may be, a legal, valid, and enforceable provision as similar in terms to such
illegal, invalid, or unenforceable provision as may be possible.
11.9 COUNTERPARTS. This Agreement and any Ancillary Agreement may be
executed in one or more counterparts, each of which shall be deemed an original
but all of which shall constitute one and the same instrument.
11.10 ASSIGNMENT. No party shall assign this Agreement without first
obtaining the written consent of the other parties. However, ILOG may assign the
rights hereunder to any subsidiary of ILOG without the consent of Seller or
Shareholders; provided, however, that no such assignment shall relieve ILOG of
any obligation or liability hereunder.
-40-
<PAGE> 47
IN WITNESS WHEREOF, the parties to this Agreement have duly executed it
on the day and year first above written.
ILOG S.A.
By: /s/ PIERRE HAREN
- -------------------------------
Title: Chairman and CEO
ILOG, Inc.
By: /s/ ROGER FRIEDBERGER
- -------------------------------
Title: Chief Financial Officer
CPLEX OPTIMIZATION, INC.
/s/ TODD A. LOWE
- -------------------------------
By: Todd A. Lowe
Title: President
Todd A. Lowe
/s/ TODD A. LOWE
- -------------------------------
Janet Lowe
/s/ JANET LOWE
- -------------------------------
Robert Bixby
/s/ ROBERT E. BIXBY
- -------------------------------
[SIGNATURE PAGE TO ILOG-CPLEX ASSET PURCHASE AGREEMENT]
<PAGE> 48
EXHIBIT A
ASSET CONTRIBUTION AGREEMENT
<PAGE> 49
Translation
CONTRIBUTION AGREEMENT
Between
CPLEX Optimization, Inc.
And
ILOG S.A.
STIBBE SIMONT MONAHAN DUHOT & GIROUX
154 Rue de l'Universite
75007 Paris
<PAGE> 50
Translation
CONTRIBUTION AGREEMENT
BETWEEN THE UNDERSIGNED:
CPLEX OPTIMIZATION, INC., a U.S. company having its registered office
located at 930 Tahoe Boulevard, 802-279 Incline Village, Nevada 89451, USA,
represented by Mr. Todd Lowe, in his capacity as President of CPLEX
OPTIMIZATION, INC.
(hereinafter referred to as "CPLEX" or the "Contributing
Company")
AND:
ILOG S.A., a French societe anonyme with a share capital of FF
43,626,848, whose registered office is located at 9 rue de Verdun, 94253
Gentilly Cedex, registered with the Registry of Commerce and Companies of
Creteil under number B 340 852 458, represented by Mr. Pierre Haren, in his
capacity as President of ILOG, S.A., or by Mr. Roger Friedberger duly authorised
for the purposes thereof by a resolution of the Board of Directors dated July
23, 1997.
(hereinafter individually referred to as "ILOG" or the
"Beneficiary Company")
(hereinafter individually referred to as a "Party" and collectively as the
"Parties")
<PAGE> 51
Translation
WHEREAS:
1. CPLEX is in the business of manufacturing, developing,
marketing and selling mathematical programming software used for formulating
and solving optimization problems in the fields of business decision making.
2. The Contributing Company intends to contribute the intellectual
property rights it owns on the "Linear Optimization System" software to the
Beneficiary Company.
3. The purpose of this contribution agreement (hereinafter
referred to as the "Agreement") is to set the terms and conditions of the
contribution of the intellectual property rights owned by the Contributing
Company on the "Linear Optimization System" software (hereafter referred to as
the "Contribution").
NOW, THEREFORE, IT WAS AGREED AS FOLLOWS:
ARTICLE 1 - CONTRIBUTION
The Contributing Company contributes with effect as at August 20, 1997
(hereafter referred to as the "Completion Date"), subject to the conditions
precedent set forth in article 5 of the Agreement as well as under the ordinary
legal conditions, to the Beneficiary Company, which accepts, the assets
composing the Contribution described here below (hereafter referred to as the
"Contributed Assets").
1.1 CONTRIBUTED ASSETS
All the intellectual property rights attached to the "Linear
Optimization System" software described in Schedule 1 of this Agreement.
1.2 AMOUNT OF THE CONTRIBUTED ASSETS
The total amount of the Contributed Assets is of fifty four
million and four hundred thousand French francs (FF 54,400,000).
-2-
<PAGE> 52
Translation
1.3 ARE NOT INCLUDED IN THE CONTRIBUTION
The debts resulting from the business carried on by CPLEX in
connection with the Contributed Assets before the Completion Date, including
all claims or actions based on the guaranty granted by or on the responsibility
incurred by CPLEX in connection with the Contributed Assets before the
Completion Date.
ARTICLE 2 -- APPRAISAL METHODS
The appraisal of the Contribution has been made under the
conditions and according to the appraisal methods described in Schedule 2 to
the Agreement.
ARTICLE 3 -- CONSIDERATION OF THE CONTRIBUTION
The Contribution is made and accepted in consideration of the
allocation to CPLEX of 1,700,000 shares of the Beneficiary Company of a nominal
value of FF. 4, to be issued by the Beneficiary Company.
In remuneration of the Contribution made by the Contributing
Company, the Beneficiary Company will increase its share capital by an amount
of six million and eight hundred thousand French francs (FF. 6,800,000) raising
it from FF. 43,626,848 to FF. 50,426,848, by the issue of 1,700,000 shares of
FF 4 each, at a price, issuing premium included, of FF. 32 each.
ARTICLE 4 -- TERMS AND CONDITIONS OF THE CONTRIBUTION
4.1 OWNERSHIP AND POSSESSION OF THE ASSETS
The Beneficiary Company shall own the Contributed Assets as
from the Completion Date, subject to the final completion of the Contribution
as provided under article 5 of this Agreement.
Should the Contribution not be completed on September 30, 1997
at the latest, the Agreement would be regarded as null and void without
indemnity due to any Party.
4.2 TAX REGIME
The Parties hereby declare that the Contribution will be
governed by the following tax regimes.
-3-
<PAGE> 53
Translation
4.2.1 REGISTRATION DUTIES
This Agreement will be registered to the fixed tax duty of FF.
500 referred to under article 810 of the French General Tax Code.
4.2.2 VAT
The Contribution referred to in this Agreement will be
submitted to VAT in France.
ARTICLE 5 -- PRECEDENT CONDITIONS
The final completion of the Contribution is subject to the
following condition precedent being met:
a) approval of the shareholders of the Contributing Company;
b) approval of the Contribution and of the subsequent increase of the
share capital by the extraordinary general meeting of the shareholders
of the Beneficiary Company.
ARTICLE 6 -- LEGAL REGIME OF THE CONTRIBUTION
The Parties declare that the Contribution is not governed by
the legal regime of splits provided under article 382 of the law of July 24,
1966 on commercial companies.
ARTICLE 7 -- FEES, COSTS AND TAXES
7.1 The expenses, costs and fees incurred by each Party in
connection with the implementation of the Agreement and its consequences shall
be borne by each of them.
7.2 Any registration and stamp duties relating to this Agreement
will be borne by the Beneficiary Company.
ARTICLE 8 -- MISCELLANEOUS
8.1 The Parties agree that the Schedules and provisions mentioned
in the Preamble to this Agreement are a whole part of the Agreement.
-4-
<PAGE> 54
Translation
8.2 The Parties agree to communicate any information as well as to delivery
and execute any documents required for the implementation of the provisions of
the Agreement.
ARTICLE 9 -- GOVERNING LAW -- JURISDICTION
This Agreement will be governed by French law, and all disputes arising
in connection with the Agreement as well as with its schedules or amendments
and/or deriving therefrom shall be settled by the Commercial Court of Creteil.
ARTICLE 10 -- ORIGINAL VERSION OF THIS AGREEMENT
The Parties acknowledge that the French version of this agreement is
the original version, but that the English version represents an acceptable
translation and no official translation will be required for the interpretation
of this Agreement.
ARTICLE 11 -- POWERS
All powers are given to the bearer of an original copy or of a duly
certified copy of this Agreement for filing and advertising purposes prescribed
by the law as well as all formalities required by this Agreement.
Made in six original copies
in
On August , 1997
CPLEX OPTIMIZATION, INC. ILOG S.A.
------------ -------------
<PAGE> 55
Translation
SCHEDULES
Schedule 1 Description of the Linear Optimizer System
software
Schedule 2 Appraisal methods
- 6 -
<PAGE> 56
CPLEX OPTIMIZATION, INC.
CPLEX LINEAR OPTIMIZER BASE SYSTEM
The foundation for All CPLEX Products, the CPLEX Base System is a powerful and
comprehensive linear programming environment which includes fast optimization
algorithms as well as a full set of utilities to support solving linear
programming problems. The Base System can be licensed alone for use as an
interactive linear programming solver, or with additional algorithmic and/or
format options. When the Callable Library format option is also licensed, the
Base System becomes a useful prototyping and debugging tool. When optional
algorithms are added, users can solve an even broader range of problem types.
The Interactive Base System Environment is provided in an executable
ready-to-use form, packing all the power and speed of CPLEX optimization engines
in an easy-to-use and easy-to-learn format with a simple user interface and an
extensive help system. New users become proficient and productive immediately.
Just read in a problem, issue the "optimize" command, and review results.
State-of-the-Art Base Algorithms include problem reduction algorithms, CPLEX's
modified primal simplex, dual simplex, and a fast network optimizer that solves
network problems -- even those with side constraints. CPLEX Base Algorithms
have successfully solved problems with millions of constraints and continuous
variables, at record-breaking speed.
BENEFITS OF THE BASE SYSTEM
Simple, yet fast and powerful.
All the raw power and performance of the CPLEX optimization engine, but
in an interactive format that you can "load and run" right away -- on
problems of unlimited size or difficulty.
Reliable and stable.
Tried and proven in thousands of commercial installations throughout the
world. Even industry's toughest problems, with millions of variables and
constraints, have been solved quickly, reliably, and accurately with
CPLEX.
Flexible.
Just because we've made it easy to use doesn't mean you must be limited.
A variety of input/output and algorithmic options are under your
control. And while CPLEX was designed for interactive use, unattended
batch use is also supported.
Compatible.
The interactive Base System can read and write industry-standard MPS
files, and is linked to many popular modeling systems.
Widely available.
Our interactive Base System is available on a wide range of computer
systems, from personal computers to supercomputers.
LINEAR OPTIMIZER BASE SYSTEM FEATURES
Interactive problem entry, modification, and query capabilities
Designed for interactive use, enabling users to enter, modify, and
solve problems on-line. Unattended batch use is also supported.
* Enter problems directly using intuitive input format, or enter
problems from files
* Change problems in as many ways and as often as you'd like
* View all or part of any problem
* View problem statistics or histogram
<PAGE> 57
Modern LP algorithms
* Modified simplex
* Dual simplex
* Network Optimizer
* Pre-solution reduction
Automatic and dynamic algorithm parameter control
CPLEX automatically determines "smart" settings for a wide range of
algorithm parameters, usually resulting in optimal LP solution performance.
However, for a more "hands-on" approach, dozens of parameters may be manually
adjusted, including algorithmic strategy controls, output information controls,
optimization duration limits, and numerical tolerances.
Fair automatic restarts from an advanced basis
Large problems can be modified, then solved again in a fraction of the
original solution time.
Wide variety of input/output options
* Problem files: read/write MPS files, CPLEX LP files, MPS basis and
revise files, binary problem/basis files
* Log files: session information and various solution reports
* Solution files: ASCII and binary solution files
* CPLEX messages: each message type (RESULTS, WARNINGS, ERRORS, etc.)
can be directed to any specified file(s) or completely suppressed
Post solution information and analysis
* Objective function value
* Solution variable and slack values
* Constraint dual values (shadow prices)
* Variable reduced costs
* Right hand side and objective function sensitivity ranges
* Basic variables and constraints
* solution infeasibilities (if any exist)
* Iteration/node count, solution time, process data
- --------------------------------------------------------------------------------
On to CPLEX Callabic Library
Back to CPLEX Home Page
- --------------------------------------------------------------------------------
CPLEX Web Info: [email protected]
Last modified: February 23, 1996
<PAGE> 58
SCHEDULE 2
APPRAISAL METHODS
The contributed software, "Linear Optimizer Base System", has been
estimated on the basis of a professional valuation by the method of the
actualized cash flows.
<PAGE> 59
EXHIBIT B(i)
PROMISSORY NOTE
<PAGE> 60
PROMISSORY NOTE
$2,547,945 August 20, 1997
FOR VALUE RECEIVED, ILOG S.A., a French societe anonyme ("COMPANY"),
promises to pay to CPLEX Optimization, Inc. ("PAYEE") the principal sum of two
million five hundred forty seven thousand nine hundred forty five dollars, or
such lesser amount as shall then equal the outstanding principal amount hereof,
together with interest from the date of this Promissory Note (the "NOTE") on the
unpaid principal balance at a rate per annum equal to 6.39% (the AFR Rate)
computed on the basis of the actual number of days elapsed and a year of 365
days, with such unpaid interest compounded monthly. Subject to the provisions of
Sections 2(c) and 6 below, all principal not previously paid pursuant to Section
2 hereof, together with any then unpaid and accrued interest, shall be due and
payable at the earlier of (i) the fourth anniversary of the date of this Note or
(ii) when such amounts are declared due and payable by the Payee, or made
automatically due and payable, upon or after the occurrence of an Event of
Default (as defined below).
This Note is one of three Promissory Notes of the Company (collectively
the "NOTES") of like tenor aggregating U.S. $5,000,000 in principal amount
issued by the Company under an Asset Purchase Agreement dated as of August 4,
1997 (the "ASSET PURCHASE AGREEMENT"), among the Company, ILOG, Inc., the Payee
and the shareholders of the Payee. No Note shall be preferred in any respect
over any other of the Notes because of its sale or transfer by its original or
any subsequent holder.
The following is a statement of the rights of the holder of this Note
and the conditions to which this Note is subject, and to which the holder
hereof, by the acceptance of this Note, agrees:
1. DEFINITIONS. Capitalized terms used without definition
herein which are defined in the Asset Purchase Agreement, dated as of August 4,
1997, between Company, Todd Lowe, Janet Lowe, Robert Bixby and Payee (the "ASSET
PURCHASE AGREEMENT"), shall have the respective meanings given in the Asset
Purchase Agreement.
2. PAYMENTS; PREPAYMENT; RIGHT OF OFFSET.
(a) Scheduled Principal and Interest Payments. On
each of the second and third anniversaries of the date of this Note, Company
shall make a principal payment to Payee in the amount of eight hundred forty
nine thousand three hundred fifteen dollars ($849,315.00). On the fourth
anniversary of the date of this Note, Company shall pay the entire remaining
outstanding principal amount of this Note together with all accrued but unpaid
interest. On the first day of each fiscal quarter of the Company that begins
after the date hereof, the Company shall make a payment to the holder hereof of
all then-accrued and unpaid interest. Each date upon which principal, interest
and/or other amounts are due under any Note is hereinafter defined as a "Due
Date."
<PAGE> 61
(b) Prepayment. This Note may be prepaid in whole or
in part by the Company at any time, or from time to time, without the further
consent of its holder; provided that all prepayments made by Company on this
Note and the other Notes shall be made on a pro rata basis on all of the Notes
in proportion to the amount outstanding under each such Note. Prepayments shall
be first applied to accrued and unpaid interest, and then to principal. If this
Note is prepaid in part, the principal amount so prepaid shall be applied
against the next scheduled principal payment or payments under Section 2(a).
(c) Company's Right of Offset. As more fully provided
in and subject to the terms of Section 8.5 of the Asset Purchase Agreement,
Company shall under certain circumstances have the right to offset any Damages
in respect of which the Payee or the holder hereof may become obliged to
indemnify the Company or ILOG, Inc. up to a maximum amount equal to one million
five hundred twenty eight thousand seven hundred sixty seven dollars
($1,528,767). Company shall give notice of any such offset to Payee in the
manner set forth in Section 8.4 of the Asset Purchase Agreement, and interest
shall cease to accrue on offset principal amounts on the date of such notice.
The amount offset shall first be applied to accrued and unpaid interest and then
to the principal amount of the next scheduled principal payment or payments
under Section 2(a).
3. EVENTS OF DEFAULT. The occurrence of any of the following
shall constitute an "Event of Default" under this Note:
(a) Failure to Pay. Company shall fail to pay any
principal, interest or other payment due under this Note or any other of the
Notes on a Due Date unless such payment is made within five (5) French banking
days of Company's receipt of the holder's written notice to Company of such
failure to pay; or
(b) Voluntary Bankruptcy or Insolvency Proceedings.
Company shall (i) apply for or consent to the appointment of a receiver,
trustee, liquidator or custodian of itself or of all or a substantial part of
its property, (ii) be unable, or admit in writing its inability, to pay its
debts generally as they mature, (iii) make a general assignment for the benefit
of its or any of its creditors, (iv) be dissolved or liquidated in full or in
part, or (v) commence a voluntary case or other proceeding seeking liquidation,
reorganization or other relief with respect to itself or its debts under any
bankruptcy, insolvency or other similar law now or hereafter in effect or
consent to any such relief or to the appointment of or taking possession of its
property by any official in an involuntary case or other proceeding commenced
against it;
(c) Involuntary Bankruptcy or Insolvency Proceedings.
Proceedings for the appointment of a receiver, trustee, liquidator or custodian
of Company or of all or a substantial part of the property thereof, or an
involuntary case or other proceedings seeking liquidation, reorganization or
other relief with respect to Company or the debts thereof under any bankruptcy,
insolvency or other similar law now or hereafter in effect shall be commenced
and an order for relief entered or such proceeding shall not be dismissed or
discharged within sixty (60) days of commencement; or
-2-
<PAGE> 62
(d) Cross Acceleration. Company shall default under
any contract or instrument evidencing indebtedness having a principal amount in
excess of $1,000,000 and such default shall result in such indebtedness becoming
due and owing prior to its stated maturity.
4. RIGHTS OF HOLDER UPON DEFAULT. Upon the occurrence or
existence of any Event of Default under Section 3(a) or 3(d) and at any time
thereafter during the continuance of such Event of Default, the holder of this
Note may with the consent of the Majority in Interest, by written notice to
Company, declare all unpaid principal and interest hereunder to be immediately
due and payable without presentment, demand, protest or any other notice of any
kind, all of which are hereby expressly waived. Upon the occurrence or existence
of any Event of Default described in Paragraphs 3(b) or 3(c), immediately and
without notice, all outstanding amounts payable by Company hereunder shall
automatically become immediately due and payable. In addition to the foregoing
remedies, upon the occurrence or existence of any Event of Default, Payee may
exercise any other right, power or remedy permitted to it by law, either by suit
in equity or by action at law, or both. Upon the occurrence and during the
continuance of an Event of Default under Section 3(a), all amounts outstanding
that are past due under this Note shall accrue interest at the rate of 15%. For
purposes of this Section 4, a "MAJORITY IN INTEREST" shall mean holders holding
a majority of the outstanding principal under all of the Notes.
5. ASSIGNMENT; SUCCESSORS AND ASSIGNS. This Note may not be
assigned by the Payee without the written consent of the Company and the Company
hereby consents to the assignment of the Note to Robert Bixby. Notwithstanding
the foregoing, the rights and obligations of Company and the Payee of this Note
shall be binding upon and benefit the successors, assigns, heirs, administrators
and transferees of the parties.
6. WAIVER AND AMENDMENT. Any provision of the Notes may be
amended, waived or modified only upon the written consent of Company and the
Majority in Interest.
7. NOTICES. Any notice, request or other communication
required or permitted hereunder shall be in writing and shall be deemed to have
been duly given if personally delivered or mailed by registered or certified
mail, postage prepaid, or by recognized overnight courier or personal delivery
at the respective addresses of the parties as set forth in the Asset Purchase
Agreement or on the register maintained by Company. Any party hereto may by
notice so given change its address for future notice hereunder. Notice shall
conclusively be deemed to have been given when received.
8. PAYMENT. Payment shall be made in lawful tender of the
United States.
9. USURY. In the event any interest is paid on this Note which
is deemed to be in excess of the then legal maximum rate, then that portion of
the interest payment representing an amount in excess of the then legal maximum
rate shall be deemed a payment of principal and applied against the principal of
this Note.
10. EXPENSES. If action is instituted to collect this Note,
the prevailing party shall be entitled to reimbursement from the other party for
all costs and expenses, including, without limitation, reasonable attorneys'
fees and costs, incurred by the prevailing party in connection with such action.
-3-
<PAGE> 63
11. GOVERNING LAW. This Note and all actions arising out of or
in connection with this Note shall be governed by and construed in accordance
with the laws of the State of Delaware, without regard to the conflicts of law
provisions of the State of Delaware or of any other jurisdiction.
IN WITNESS WHEREOF, Company has caused this Note to be issued
as of the date first written above.
ILOG S.A.
By:
----------------------------------------
Name: Roger Friedberger
-------------------------------------
Title: Chief Financial Officer
-------------------------------------
-4-
<PAGE> 64
EXHIBIT B(ii)
PROMISSORY NOTE
<PAGE> 65
PROMISSORY NOTE
$1,470,320 August 20, 1997
FOR VALUE RECEIVED, ILOG S.A., a French societe anonyme ("COMPANY"),
promises to pay to CPLEX Optimization, Inc. ("PAYEE") the principal sum of one
million four hundred seventy thousand three hundred twenty dollars, or such
lesser amount as shall then equal the outstanding principal amount hereof,
together with interest from the date of this Promissory Note (the "NOTE") on the
unpaid principal balance at a rate per annum equal to 6.39% (the AFR Rate)
computed on the basis of the actual number of days elapsed and a year of 365
days, with such unpaid interest compounded monthly. Subject to the provisions of
Sections 2(c) and 6 below, all principal not previously paid pursuant to Section
2 hereof, together with any then unpaid and accrued interest, shall be due and
payable at the earlier of (i) the fourth anniversary of the date of this Note or
(ii) when such amounts are declared due and payable by the Payee, or made
automatically due and payable, upon or after the occurrence of an Event of
Default (as defined below).
This Note is one of three Promissory Notes of the Company (collectively
the "NOTES") of like tenor aggregating U.S. $5,000,000 in principal amount
issued by the Company under an Asset Purchase Agreement dated as of August 4,
1997 (the "ASSET PURCHASE AGREEMENT"), among the Company, ILOG, Inc., the Payee
and the shareholders of the Payee. No Note shall be preferred in any respect
over any other of the Notes because of its sale or transfer by its original or
any subsequent holder.
The following is a statement of the rights of the holder of this Note
and the conditions to which this Note is subject, and to which the holder
hereof, by the acceptance of this Note, agrees:
1. DEFINITIONS. Capitalized terms used without definition
herein which are defined in the Asset Purchase Agreement, dated as of August 4,
1997, between Company, Todd Lowe, Janet Lowe, Robert Bixby and Payee (the "ASSET
PURCHASE AGREEMENT"), shall have the respective meanings given in the Asset
Purchase Agreement.
2. PAYMENTS; PREPAYMENT; RIGHT OF OFFSET.
(a) Scheduled Principal and Interest Payments. On
each of the second and third anniversaries of the date of this Note, Company
shall make a principal payment to Payee in the amount of four hundred ninety
thousand one hundred six dollars and sixty seven cents ($490,106.67). On the
fourth anniversary of the date of this Note, Company shall pay the entire
remaining outstanding principal amount of this Note together with all accrued
but unpaid interest. On the first day of each fiscal quarter of the Company that
begins after the date hereof, the Company shall make a payment to the holder
hereof of all then-accrued and unpaid interest. Each date upon which principal,
interest and/or other amounts are due under any Note is hereinafter defined as a
"Due Date."
<PAGE> 66
(b) Prepayment. This Note may be prepaid in whole or
in part by the Company at any time, or from time to time, without the further
consent of its holder; provided that all prepayments made by Company on this
Note and the other Notes shall be made on a pro rata basis on all of the Notes
in proportion to the amount outstanding under each such Note. Prepayments shall
be first applied to accrued and unpaid interest, and then to principal. If this
Note is prepaid in part, the principal amount so prepaid shall be applied
against the next scheduled principal payment or payments under Section 2(a).
(c) Company's Right of Offset. As more fully provided
in and subject to the terms of Section 8.5 of the Asset Purchase Agreement,
Company shall under certain circumstances have the right to offset any Damages
in respect of which the Payee or the holder hereof may become obliged to
indemnify the Company or ILOG, Inc. up to a maximum amount equal to eight
hundred eighty two thousand one hundred ninety two dollars ($882,192). Company
shall give notice of any such offset to Payee in the manner set forth in Section
8.4 of the Asset Purchase Agreement, and interest shall cease to accrue on
offset principal amounts on the date of such notice. The amount offset shall
first be applied to accrued and unpaid interest and then to the principal amount
of the next scheduled principal payment or payments under Section 2(a).
3. EVENTS OF DEFAULT. The occurrence of any of the following
shall constitute an "Event of Default" under this Note:
(a) Failure to Pay. Company shall fail to pay any
principal, interest or other payment due under this Note or any other of the
Notes on a Due Date unless such payment is made within five (5) French banking
days of Company's receipt of the holder's written notice to Company of such
failure to pay; or
(b) Voluntary Bankruptcy or Insolvency Proceedings.
Company shall (i) apply for or consent to the appointment of a receiver,
trustee, liquidator or custodian of itself or of all or a substantial part of
its property, (ii) be unable, or admit in writing its inability, to pay its
debts generally as they mature, (iii) make a general assignment for the benefit
of its or any of its creditors, (iv) be dissolved or liquidated in full or in
part, or (v) commence a voluntary case or other proceeding seeking liquidation,
reorganization or other relief with respect to itself or its debts under any
bankruptcy, insolvency or other similar law now or hereafter in effect or
consent to any such relief or to the appointment of or taking possession of its
property by any official in an involuntary case or other proceeding commenced
against it;
(c) Involuntary Bankruptcy or Insolvency Proceedings.
Proceedings for the appointment of a receiver, trustee, liquidator or custodian
of Company or of all or a substantial part of the property thereof, or an
involuntary case or other proceedings seeking liquidation, reorganization or
other relief with respect to Company or the debts thereof under any bankruptcy,
insolvency or other similar law now or hereafter in effect shall be commenced
and an order for relief entered or such proceeding shall not be dismissed or
discharged within sixty (60) days of commencement; or
-2-
<PAGE> 67
(d) Cross Acceleration. Company shall default under
any contract or instrument evidencing indebtedness having a principal amount in
excess of $1,000,000 and such default shall result in such indebtedness becoming
due and owing prior to its stated maturity.
4. RIGHTS OF HOLDER UPON DEFAULT. Upon the occurrence or
existence of any Event of Default under Section 3(a) or 3(d) and at any time
thereafter during the continuance of such Event of Default, the holder of this
Note may with the consent of the Majority in Interest, by written notice to
Company, declare all unpaid principal and interest hereunder to be immediately
due and payable without presentment, demand, protest or any other notice of any
kind, all of which are hereby expressly waived. Upon the occurrence or existence
of any Event of Default described in Paragraphs 3(b) or 3(c), immediately and
without notice, all outstanding amounts payable by Company hereunder shall
automatically become immediately due and payable. In addition to the foregoing
remedies, upon the occurrence or existence of any Event of Default, Payee may
exercise any other right, power or remedy permitted to it by law, either by suit
in equity or by action at law, or both. Upon the occurrence and during the
continuance of an Event of Default under Section 3(a), all amounts outstanding
that are past due under this Note shall accrue interest at the rate of 15%. For
purposes of this Section 4, a "MAJORITY IN INTEREST" shall mean holders holding
a majority of the outstanding principal under all of the Notes.
5. ASSIGNMENT; SUCCESSORS AND ASSIGNS. This Note may not be
assigned by the Payee without the written consent of the Company and the Company
hereby consents to the assignment of the Note to Janet Lowe. Notwithstanding the
foregoing, the rights and obligations of Company and the Payee of this Note
shall be binding upon and benefit the successors, assigns, heirs, administrators
and transferees of the parties.
6. WAIVER AND AMENDMENT. Any provision of the Notes may be
amended, waived or modified only upon the written consent of Company and the
Majority in Interest.
7. NOTICES. Any notice, request or other communication
required or permitted hereunder shall be in writing and shall be deemed to have
been duly given if personally delivered or mailed by registered or certified
mail, postage prepaid, or by recognized overnight courier or personal delivery
at the respective addresses of the parties as set forth in the Asset Purchase
Agreement or on the register maintained by Company. Any party hereto may by
notice so given change its address for future notice hereunder. Notice shall
conclusively be deemed to have been given when received.
8. PAYMENT. Payment shall be made in lawful tender of the
United States.
9. USURY. In the event any interest is paid on this Note which
is deemed to be in excess of the then legal maximum rate, then that portion of
the interest payment representing an amount in excess of the then legal maximum
rate shall be deemed a payment of principal and applied against the principal of
this Note.
10. EXPENSES. If action is instituted to collect this Note,
the prevailing party shall be entitled to reimbursement from the other party for
all costs and expenses, including, without limitation, reasonable attorneys'
fees and costs, incurred by the prevailing party in connection with such action.
-3-
<PAGE> 68
11. GOVERNING LAW. This Note and all actions arising out of or
in connection with this Note shall be governed by and construed in accordance
with the laws of the State of Delaware, without regard to the conflicts of law
provisions of the State of Delaware or of any other jurisdiction.
IN WITNESS WHEREOF, Company has caused this Note to be issued
as of the date first written above.
ILOG S.A.
By:
----------------------------------------
Name: Roger Friedberger
-------------------------------------
Title: Chief Financial Officer
-------------------------------------
-4-
<PAGE> 69
EXHIBIT B(iii)
PROMISSORY NOTE
<PAGE> 70
PROMISSORY NOTE
$981,735 August 20, 1997
FOR VALUE RECEIVED, ILOG S.A., a French societe anonyme ("COMPANY"),
promises to pay to CPLEX Optimization, Inc. ("PAYEE") the principal sum of nine
hundred eighty one thousand seven hundred thirty five dollars, or such lesser
amount as shall then equal the outstanding principal amount hereof, together
with interest from the date of this Promissory Note (the "NOTE") on the unpaid
principal balance at a rate per annum equal to 6.39% (the AFR Rate) computed on
the basis of the actual number of days elapsed and a year of 365 days, with such
unpaid interest compounded monthly. Subject to the provisions of Sections 2(c)
and 6 below, all principal not previously paid pursuant to Section 2 hereof,
together with any then unpaid and accrued interest, shall be due and payable at
the earlier of (i) the fourth anniversary of the date of this Note or (ii) when
such amounts are declared due and payable by the Payee, or made automatically
due and payable, upon or after the occurrence of an Event of Default (as defined
below).
This Note is one of three Promissory Notes of the Company (collectively
the "NOTES") of like tenor aggregating U.S. $5,000,000 in principal amount
issued by the Company under an Asset Purchase Agreement dated as of August 4,
1997 (the "ASSET PURCHASE AGREEMENT"), among the Company, ILOG, Inc., the Payee
and the shareholders of the Payee. No Note shall be preferred in any respect
over any other of the Notes because of its sale or transfer by its original or
any subsequent holder.
The following is a statement of the rights of the holder of this Note
and the conditions to which this Note is subject, and to which the holder
hereof, by the acceptance of this Note, agrees:
1. DEFINITIONS. Capitalized terms used without definition
herein which are defined in the Asset Purchase Agreement, dated as of August 4,
1997, between Company, Todd Lowe, Janet Lowe, Robert Bixby and Payee (the "ASSET
PURCHASE AGREEMENT"), shall have the respective meanings given in the Asset
Purchase Agreement.
2. PAYMENTS; PREPAYMENT; RIGHT OF OFFSET.
(a) Scheduled Principal and Interest Payments. On
each of the second and third anniversaries of the date of this Note, Company
shall make a principal payment to Payee in the amount of three hundred twenty
seven thousand two hundred forty five dollars ($327,245.00). On the fourth
anniversary of the date of this Note, Company shall pay the entire remaining
outstanding principal amount of this Note together with all accrued but unpaid
interest. On the first day of each fiscal quarter of the Company that begins
after the date hereof, the Company shall make a payment to the holder hereof of
all then-accrued and unpaid interest. Each date upon which principal, interest
and/or other amounts are due under any Note is hereinafter defined as a "Due
Date."
-1-
<PAGE> 71
(b) Prepayment. This Note may be prepaid in whole or
in part by the Company at any time, or from time to time, without the further
consent of its holder; provided that all prepayments made by Company on this
Note and the other Notes shall be made on a pro rata basis on all of the Notes
in proportion to the amount outstanding under each such Note. Prepayments shall
be first applied to accrued and unpaid interest, and then to principal. If this
Note is prepaid in part, the principal amount so prepaid shall be applied
against the next scheduled principal payment or payments under Section 2(a).
(c) Company's Right of Offset. As more fully provided
in and subject to the terms of Section 8.5 of the Asset Purchase Agreement,
Company shall under certain circumstances have the right to offset any Damages
in respect of which the Payee or the holder hereof may become obliged to
indemnify the Company or ILOG, Inc. up to a maximum amount equal to five hundred
eighty nine thousand forty one dollars ($589,041). Company shall give notice of
any such offset to Payee in the manner set forth in Section 8.4 of the Asset
Purchase Agreement, and interest shall cease to accrue on offset principal
amounts on the date of such notice. The amount offset shall first be applied to
accrued and unpaid interest and then to the principal amount of the next
scheduled principal payment or payments under Section 2(a).
3. EVENTS OF DEFAULT. The occurrence of any of the following
shall constitute an "Event of Default" under this Note:
(a) Failure to Pay. Company shall fail to pay any
principal, interest or other payment due under this Note or any other of the
Notes on a Due Date unless such payment is made within five (5) French banking
days of Company's receipt of the holder's written notice to Company of such
failure to pay; or
(b) Voluntary Bankruptcy or Insolvency Proceedings.
Company shall (i) apply for or consent to the appointment of a receiver,
trustee, liquidator or custodian of itself or of all or a substantial part of
its property, (ii) be unable, or admit in writing its inability, to pay its
debts generally as they mature, (iii) make a general assignment for the benefit
of its or any of its creditors, (iv) be dissolved or liquidated in full or in
part, or (v) commence a voluntary case or other proceeding seeking liquidation,
reorganization or other relief with respect to itself or its debts under any
bankruptcy, insolvency or other similar law now or hereafter in effect or
consent to any such relief or to the appointment of or taking possession of its
property by any official in an involuntary case or other proceeding commenced
against it;
(c) Involuntary Bankruptcy or Insolvency Proceedings.
Proceedings for the appointment of a receiver, trustee, liquidator or custodian
of Company or of all or a substantial part of the property thereof, or an
involuntary case or other proceedings seeking liquidation, reorganization or
other relief with respect to Company or the debts thereof under any bankruptcy,
insolvency or other similar law now or hereafter in effect shall be commenced
and an order for relief entered or such proceeding shall not be dismissed or
discharged within sixty (60) days of commencement; or
-2-
<PAGE> 72
(d) Cross Acceleration. Company shall default under
any contract or instrument evidencing indebtedness having a principal amount in
excess of $1,000,000 and such default shall result in such indebtedness becoming
due and owing prior to its stated maturity.
4. RIGHTS OF HOLDER UPON DEFAULT. Upon the occurrence or
existence of any Event of Default under Section 3(a) or 3(d) and at any time
thereafter during the continuance of such Event of Default, the holder of this
Note may with the consent of the Majority in Interest, by written notice to
Company, declare all unpaid principal and interest hereunder to be immediately
due and payable without presentment, demand, protest or any other notice of any
kind, all of which are hereby expressly waived. Upon the occurrence or existence
of any Event of Default described in Paragraphs 3(b) or 3(c), immediately and
without notice, all outstanding amounts payable by Company hereunder shall
automatically become immediately due and payable. In addition to the foregoing
remedies, upon the occurrence or existence of any Event of Default, Payee may
exercise any other right, power or remedy permitted to it by law, either by suit
in equity or by action at law, or both. Upon the occurrence and during the
continuance of an Event of Default under Section 3(a), all amounts outstanding
that are past due under this Note shall accrue interest at the rate of 15%. For
purposes of this Section 4, a "MAJORITY IN INTEREST" shall mean holders holding
a majority of the outstanding principal under all of the Notes.
5. ASSIGNMENT; SUCCESSORS AND ASSIGNS. This Note may not be
assigned by the Payee without the written consent of the Company and the Company
hereby consents to the assignment of the Note to Todd A. Lowe. Notwithstanding
the foregoing, the rights and obligations of Company and the Payee of this Note
shall be binding upon and benefit the successors, assigns, heirs, administrators
and transferees of the parties.
6. WAIVER AND AMENDMENT. Any provision of the Notes may be
amended, waived or modified only upon the written consent of Company and the
Majority in Interest.
7. NOTICES. Any notice, request or other communication
required or permitted hereunder shall be in writing and shall be deemed to have
been duly given if personally delivered or mailed by registered or certified
mail, postage prepaid, or by recognized overnight courier or personal delivery
at the respective addresses of the parties as set forth in the Asset Purchase
Agreement or on the register maintained by Company. Any party hereto may by
notice so given change its address for future notice hereunder. Notice shall
conclusively be deemed to have been given when received.
8. PAYMENT. Payment shall be made in lawful tender of the
United States.
9. USURY. In the event any interest is paid on this Note which
is deemed to be in excess of the then legal maximum rate, then that portion of
the interest payment representing an amount in excess of the then legal maximum
rate shall be deemed a payment of principal and applied against the principal of
this Note.
10. EXPENSES. If action is instituted to collect this Note,
the prevailing party shall be entitled to reimbursement from the other party for
all costs and expenses, including, without limitation, reasonable attorneys'
fees and costs, incurred by the prevailing party in connection with such action.
-3-
<PAGE> 73
11. GOVERNING LAW. This Note and all actions arising out of or
in connection with this Note shall be governed by and construed in accordance
with the laws of the State of Delaware, without regard to the conflicts of law
provisions of the State of Delaware or of any other jurisdiction.
IN WITNESS WHEREOF, Company has caused this Note to be issued
as of the date first written above.
ILOG S.A.
By:
-----------------------------------------
Name: Roger Friedberger
--------------------------------------
Title: Chief Financial Officer
--------------------------------------
-4-
<PAGE> 74
EXHIBIT C
PROMISSORY NOTE
<PAGE> 75
FINANCIAL STATEMENTS
CPLEX OPTIMIZATION, INC.
YEAR ENDED JUNE 30, 1997
WITH REPORT OF INDEPENDENT AUDITORS
DRAFT AUGUST 1, 1997 10:50 AM
<PAGE> 76
CPLEX Optimization, Inc.
Financial Statements
Year ended June 30, 1997
CONTENTS
Report of Independent Auditors.......................................... 1
Audited Financial Statements
Balance Sheets........................................................... 2
Statement of Operations.................................................. 3
Statement of Shareholders' Equity (Deficit).............................. 4
Statement of Cash Flows.................................................. 5
Notes to Financial Statements............................................ 6
<PAGE> 77
Report of Independent Auditors
The Board of Directors and Shareholders
CPLEX Optimization, Inc.
We have audited the accompanying balance sheets of CPLEX Optimization, Inc. as
of June 30, 1997 and 1996, and the related statements of operations,
shareholders' equity (deficit), and cash flows for the year ended June 30, 1997.
These financial statements are the responsibility of the Company's management.
Our responsibility is to express an opinion on these financial statements based
on our audits.
We conducted our audit in accordance with generally accepted accounting
standards. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements. An audit also includes
assessing the accounting principles used and significant estimates made by
management, as well as evaluating the overall financial statement presentation.
We believe that our audit provides a reasonable basis for our opinion.
In our opinion, the financial statements referred to above present fairly, in
all material respects, the financial position of CPLEX Optimization, Inc. at
June 30, 1997 and 1996, and the results of its operations and its cash flows
for the year ended June 30, 1997 in conformity with generally accepted
accounting principles.
July 24, 1997
except for Note 5,
as to which the date is
August __, 1997
1
<PAGE> 78
CPLEX Optimization, Inc.
Balance Sheets
<TABLE>
<CAPTION>
June 30,
--------------------------
1997 1996
---------- ----------
<S> <C> <C>
Assets
Current assets:
Cash $ 78,829 $ 931,292
Accounts receivable, net of allowance
of $37,000 in 1997 and none in 1996 791,119 476,457
Prepaid expenses and other assets 15,500 6,000
---------- ----------
Total current assets 885,448 1,413,749
Property and equipment, net 106,996 53,170
---------- ----------
Total assets $ 992,444 $1,466,919
Liabilities and shareholders' equity (deficit)
Current liabilities:
Accrued royalties due to related party $ 147,182 $ 103,425
Accrued management fees due to related party 215,416 111,441
Loan from related party -- 7,229
Accrued expenses 189,079 109,566
Deferred revenue 624,754 397,108
---------- ----------
Total current liabilities 1,176,431 728,769
Commitments
Shareholders' equity (deficit):
Common stock, $1 par value:
Authorized shares - 5,000
Issued and outstanding shares -
1,095 in 1997 and 1996 1,095 1,095
Additional paid-in capital (3,161) (3,161)
Retained earnings (accumulated deficit) (181,921) 740,216
---------- ----------
Total shareholders' equity (deficit) (183,987) 738,150
---------- ----------
Total liabilities and shareholders'
equity (deficit) $ 992,444 $1,466,919
---------- ----------
</TABLE>
See accompanying notes.
2
<PAGE> 79
CPLEX Optimization, Inc.
Statement of Operations
<TABLE>
<CAPTION>
Year Ended
June 30,
1997
----------
<S> <C>
Revenues:
Software licenses $4,824,510
Services 834,083
----------
Total revenues 5,658,593
Cost of revenues:
Software licenses 740,148
Services 91,667
----------
Total cost of revenues 831,815
----------
Gross profit 4,826,778
Operating expenses:
Marketing and selling 783,688
Research and development 437,925
General and administrative 540,499
----------
Total operating expenses 1,762,112
----------
Income from operations 3,064,666
Interest income 33,197
----------
Net income $3,097,863
----------
</TABLE>
See accompanying notes.
3
<PAGE> 80
CPLEX OPTIMIZATION, INC.
STATEMENT OF SHAREHOLDERS' EQUITY (DEFICIT)
TOTAL
ADDITIONAL SHAREHOLDERS'
COMMON PAID-IN RETAINED EQUITY
STOCK CAPITAL EARNINGS (DEFICIT)
------ ---------- -------- -------------
Balance at June 30, 1996 $1,095 $(3,161) $ 740,216 $ 738,150
Net income -- -- 3,097,863 3,097,863
Distribution of profits -- -- (4,020,000) (4,020,000)
------ --------- ----------- -----------
Balance at June 30, 1997 $1,095 $(3,161) $ (181,921) $ (183,987)
====== ========= =========== ===========
See accompanying notes.
4
<PAGE> 81
CPLEX OPTIMIZATION, INC.
STATEMENT OF CASH FLOWS
YEAR ENDED
JUNE 30,
1997
----------
OPERATING ACTIVITIES
Net income.................................................. $3,097,863
Adjustments to reconcile net loss to net cash
used in operating activities:
Depreciation and amortization.......................... 29,361
Changes in operating assets and liabilities:
Accounts receivable................................. (314,662)
Other current assets................................ (9,500)
Accrued royalties due to related party.............. 43,757
Accrued management fees due to related party........ 103,975
Loan from related party............................. (7,229)
Accrued expenses.................................... 79,513
Deferred revenue.................................... 227,646
----------
Net cash provided by operating activities................... 3,250,724
INVESTING ACTIVITIES
Purchase of fixed assets.................................... (83,187)
----------
Net cash used in investing activities....................... (83,187)
FINANCING ACTIVITIES
Distribution of profits to shareholders..................... (4,020,000)
----------
Net cash used in financing activities....................... (4,020,000)
----------
Net decrease in cash........................................ (852,463)
Cash at beginning of year................................... 931,292
----------
Cash at end of year......................................... $ 78,829
==========
See accompanying notes.
5
<PAGE> 82
CPLEX Optimization, Inc.
Notes to Financial Statements
June 30, 1997
1. ORGANIZATION AND SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
ORGANIZATION
CPLEX Optimization, Inc. (the Company, an S Corporation, was incorporated in
Texas in October 1988. The Company is a provider of math programming software
and related services.
BASIS OF PRESENTATION
The accompanying financial statements were prepared in accordance with
generally accepted accounting principles. The preparation of financial
statements requires management to make estimates and assumptions that affect
the amounts reported in the financial statements and accompanying footnotes.
Actual results could differ from those estimates.
DEPRECIATION
Property and equipment are stated at cost. Depreciation is computed using the
straight-line method over the estimated useful lives of the assets, generally
three to five years.
In 1996, the Financial Accounting Standards Board issued Statement of Financial
Accounting Standards No. 121, "Accounting for the Impairment of Long-Lived
Assets and for Long-Lived Assets to be Disposed of" (FAS 121). FAS 121 requires
recognition of impairment of long-lived assets in the event the net book value
of such assets exceeds the future undiscounted cash flows attributable to such
assets. FAS 121 is effective for fiscal years beginning after December 15,
1996. The impact of the adoption of FAS 121 was not material to the Company's
financial position or results of operations.
REVENUE RECOGNITION
The Company recognizes revenue in accordance with the American Institute of
Certified Public Accountants Statement of Position 91-1 on Software Revenue
Recognition.
License fees are earned under software license agreements with end users and
distributors and are recognized upon shipment if no significant vendor
obligations remain and collection of the resulting receivable is deemed
probable.
6
<PAGE> 83
CPLEX Optimization, Inc.
Notes to Financial Statements (continued)
1. ORGANIZATION AND SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (CONTINUED)
REVENUE RECOGNITION (CONTINUED)
Service revenues are derived from consulting and training services and fees
earned under annual maintenance agreements for providing updates, on an "if and
when available" basis, for existing software products, user documentation, and
technical support. Maintenance revenue is recognized ratably over the term of
such agreements. If such services are included in the initial licensing fee,
the value of the services is unbundled and recognized ratably over the related
service period.
CONCENTRATION OF CREDIT RISK
The Company operates in one business segment, the development and licensing of
high-performance software, which it sells to various companies across several
industries. The Company performs ongoing credit evaluations of its customers
and generally requires no collateral.
SOFTWARE DEVELOPMENT COSTS
In accordance with Statement of Financial Accounting Standards, No. 86,
"Accounting for the Costs of Computer Software to be Sold, Leased or Otherwise
Marketed," the Company capitalizes eligible computer software costs upon
achievement of technological feasibility, subject to net realizable value
considerations. The establishment of technological feasibility and the ongoing
assessment of the recoverability of these costs require management's judgment
with respect to certain external factors, including, but not limited to,
anticipated future gross license revenues, estimated economic life, and changes
in software and hardware technology. As of June 30, 1997 and 1996, such
capitalizable costs were insignificant. Accordingly, the Company has not
capitalized such costs but has charged all such costs to research and
development expense in the accompanying statements of operations.
7
<PAGE> 84
CPLEX Optimization, Inc.
Notes to Financial Statements (continued)
2. Balance Sheet Components
<TABLE>
<CAPTION>
June 30,
----------------------------
1997 1996
------------ ------------
<S> <C> <C>
Computer equipment and software $264,708 $209,114
Furniture and equipment 59,322 31,729
------------ ------------
324,030 240,843
Less accumulated depreciation 217,034 240,843
------------ ------------
$106,996 $ 53,170
------------ ------------
</TABLE>
3. Commitments
The Company leases its facilities under an operating lease expiring in October
1997 with an option to renew for a five year term. In addition to base rent,
the Company is responsible for certain taxes, utilities, and maintenance costs.
Future minimum lease payments under noncancelable operating leases at June 30,
1997 are approximately $14,000 for fiscal 1998. There are no commitments
thereafter.
Total rent expense for fiscal 1997 was approximately $60,000.
4. Related Party Transactions
The Company has a contract with a company, owned by the nonemployee President
and Chief Executive Officer of the Company, to provide management services.
Total management service fees incurred during fiscal 1997 amounted to
approximately $704,000.
The Company has a royalty agreement with a founder and employee based on a
percentage of certain license revenues. During fiscal 1997, the royalties
incurred relating to this agreement amounted to approximately $429,000.
The Company pays an employee royalties on software code licensed by the Company
but developed by that employee prior to joining CPLEX. These royalties amounted
to approximately $38,000 during fiscal 1997.
8
<PAGE> 85
CPLEX Optimization, Inc.
Notes to Financial Statements (continued)
4. Related Party Transactions (continued)
During fiscal 1997, the Company recognized approximately $210,000 in revenue
from a company partially owned by shareholders of the Company.
5. Subsequent Event (Unaudited)
The shareholders of the Company entered into an agreement on August __, 1997
with a third party where the third party will acquire the business of the
Company by purchasing the Company's fixed assets, technology, and other
intangibles and assuming certain of the Company's liabilities and contractual
obligations in exchange for cash, stock of the third party, and promissory
notes.
9
<PAGE> 86
EXHIBIT D
ILOG PRESS RELEASES
<PAGE> 87
Contact: Roger Friedberger
ILOG
011-331-49083574
- or -
Taylor Rafferty
212-889-4350
ILOG ANNOUNCES ACQUISITION OF CPLEX OPTIMIZATION, INC.
Paris, France, August 5, 1997 -- ILOG S.A. (NASDAQ NMS: ILOGY), a leading
provider of advanced software components, today announced that it has signed a
definitive agreement to acquire the business of CPLEX Optimization, Inc. of
Incline Village, Nevada, a leader in linear optimization software.
CPLEX's business will be acquired in exchange for 1,700,000 ILOG shares,
$15,000,000 and a $5,000,000 four-year promissory note which is subject to
upward adjustment of up to an additional $2,400,000. The CPLEX management will
be joining ILOG and include Dr. Robert Bixby, its Chairman, and Mr. Todd Lowe,
its President, whoa re being nominated to ILOG's Board of Directors. Options for
1,100,000 ILOG shares will be granted to the CPLEX management and employees,
under ILOG's 1996 US Share Option Plan, following the closing of the
acquisition. The business combination is subject to ILOG shareholder approval
and will be put to shareholders at a meeting to be held on August 20, 1997; the
acquisition will become effective shortly after shareholder approval is
received.
"ILOG and CPLEX share a common vision about the need for embeddable
optimization software for solving dynamic resource allocation problems in a wide
range of industries," commented Pierre Haren, ILOG's President and CEO.
"CPLEX's high visibility in the US operations research world complements ILOG's
established position in Europe. This business combination will provide our
customers with the very best libraries of linear, mixed-integer, quadratic and
constraint-based programming algorithms and creates a worldwide leader in
optimization software."
"I am also pleased to welcome Dr. Bob Bixby and Todd Lowe to the ILOG Board of
Directors. They bring a unique breadth of academic and business experience to
the company" added Mr. Haren.
Todd Lowe, President and CEO of CPLEX commented: "The combination of ILOG and
CPLEX technologies creates a remarkably complete and powerful arsenal of
optimization and application building tools. The resulting products will
empower creators and users of decision support and operations management
applications worldwide to achieve optimal results."
ABOUT CPLEX
CPLEX is a privately held company founded in 1988 by the principals and is a
leading provider of optimization software. Its revenues for the year ended June
30, 1997 were $5.7 million and the company has 13 employees who will continue
with ILOG at CPLEX's Incline Village location.
<PAGE> 88
ABOUT ILOG
ILOG is a leading provider of advanced software components for graphics and
resource optimization. ILOG's products enable: high-performance
data-visualization for 2D and 3D user interfaces; constraint-based reasoning
systems for resource optimization, scheduling, logistics and planning
applications; dynamic rule systems for intelligent agents and real-time data
flow control; and component services for integrating C++ modules with real-time
and relational data sources. ILOG S.A. was founded in 1987, now employes
approximately 280 people worldwide, and is traded on NASDAQ NMS under the
symbol ILOGY.
This release contains "forward looking" information within the meaning of the
United States Securities laws that involve risks and uncertainties that could
cause actual results to differ materially from those in the forward looking
statements. Potential risks and uncertainties include, without limitation, the
company's lengthy sales process, the early development stage of the market for
the company's products, the timing of significant revenues, the economic,
political and currency risks associated with the company's European, North
American and Asian operations and the company's ability to consummate the
acquisition of CPLEX.
ILOG and CPLEX are registered trademarks of ILOG S.A. and CPLEX Optimization,
Inc. respectively.
<PAGE> 89
Contact: Roger Friedberger
ILOG
011-331-49083574
- or -
Taylor Rafferty Associates
212-889-4350
ILOG REPORTS RESULTS FOR THE QUARTER AND YEAR ENDED JUNE 30, 1997
Paris, France, August 5, 1997 -- ILOG S.A. (NASDAQ NMS: ILOGY), a leading
provider of advanced software components, today reported revenues of $9.6
million for its fourth quarter ended June 30, 1997, an increase of 15% compared
to $8.3 million in the June 1996 quarter. The loss from operations for the June
1997 quarter was $425,000, compared to $593,000 in the June 1996 quarter. Loss
per share for the June 1997 quarter was $0.02 on 10.9 million shares, compared
to $0.10 on 7.0 million shares in the June 1996 quarter.
The company reported revenues of $33.3 million for the year ended June 30,
1997, an increase of 28% compared to $26.0 million in the prior year. The loss
from operations for the year was $3.7 million, compared to $4.7 million in the
prior year. Loss per share for the year was $0.31 on 8.4 million shares,
compared to $0.73 on 6.9 million shares in the prior year. Both revenues and
expenses in the year would have been each approximately $1.2 million higher if
the US dollar exchange rates for the year had been the same rates used in the
preceding year. Currency fluctuations did not have a material effect on the
company's results from operations, net loss or net loss per share.
In a separate release issued today ILOG also announced a proposed acquisition
of CPLEX Optimization, Inc. which is part of ILOG's strategic direction in
reinforcing its position as the world's leading purveyor of resource
optimization software components.
Revenues in the quarter grew by 15% over the same quarter in the previous year
and 28% for the year, reflecting higher revenues from services which grew by
58% over the same quarter in the preceding year and 50% for the year. "The
growth of our consulting business during the year and the achievement of
customer funded research and development in the most recent quarter" said
Pierre Haren, ILOG's President and CEO, "is expected to provide an impetus for
license revenues in the future and reflects our strategic decision to emphasize
the provision of services as a means to accelerate the time to customer
satisfaction."
Overall gross margin for the quarter decreased to 78% from 83% for the same
period in the preceding year due to the 58% growth in lower-margin services
revenues. Marketing and selling expenses for the quarter increased by 10% over
the same period in the prior year reflecting continuing investment in sales and
marketing personnel, particularly in North America. Research and development
expenses, net of government funding, for the quarter decreased by 15% over the
same period in the prior year primarily because certain research and
development activities were customer funded and are classified as cost of
revenues for operating statement reporting purposes. Government funding in the
quarter was $167,000 compared to $1,157,000 or the same period in the
preceding year as a number of funded
<PAGE> 90
2
projects have been concluded. General and administrative expenses for the
quarter increased by 7% over the same period in the prior year. Net interest
income (expense) for the quarter increased from $(95,000) to $154,000 over the
same period in the prior year reflecting interest earned on the proceeds of the
company's February initial public offering.
Overall gross margin for the year was 80% compared to 79% in the prior year.
Marketing and selling expenses for the year increased by 25% over the prior
year reflecting continuing investment in sales and marketing personnel,
particularly in North America. Research and development expenses, net of
government funding, for the year increased by 3% over the prior year.
Government funding in the year was $415,000 compared to $2,549,000 in the prior
year as a number of funded projects were concluded in the year. General and
administrative expenses for the year increased by 21% over the prior year,
which reflects staffing additions to the company's finance organization and
on-going costs associated with being a public company. Net interest income
(expense) and other for the year increased from $(259,000) to $1,124,000 over
the prior year reflecting a $1,100,000 grant received from an agency of the
French government with respect to the company's establishment of subsidiaries
outside of France and interest earned on the proceeds of the company's February
initial public offering.
At June 30, 1997 shareholders' equity was $27.0 million, compared to $1.2
million at June 30, 1996. Cash at June 30, 1997 totaled $26.0 million compared
to $5.0 million at June 30, 1996. At June 30, 1997 the company had 11.0 million
shares issued and outstanding compared to 6.9 million at June 30, 1996.
BUSINESS DEVELOPMENTS IN THE QUARTER
40% of ILOG's revenues in the quarter were derived from telecom customers. In
this market segment ILOG libraries are being increasingly selected for
large-scale projects, and many customers are starting to reuse in-house
components that were build with ILOG libraries. Telecom industry applications
include network management, customer care and billing, and network
optimization. ILOG's increased focus in the telecom market has been rewarded in
the quarter by new business from Hitachi, Kolsch and Altmann, Lucent and
Mannesman. Repeat business with Alcatel, ATT, Bellcore, Ciena, DS Telematica,
France Telecom, Hewlett-Packard, IBM, NTT, Qualcomm, Telefonica, Telecom
Italia, SFR, TTC and US West was also received.
Also in the quarter Nortel (Northern Telecom Limited) signed an agreement with
ILOG to develop and license worldwide a Telecom Graphic Objects Library
embodying their proprietary graphical user interface. The library will be
commercially available in 1998 as a standard ready-to-use high-performance set
of network management graphic objects and states for integration in network
management platforms. "Delivering high-performance high-bandwidth graphics is
key to the telecom industry and the relationship with Nortel marks the growing
recognition by the telecom industry of the excellence of ILOG's libraries,"
added Mr. Haren.
ILOG's optimization products during the quarter were selected for major
projects by ISCOR, a steel manufacturer in South Africa and Lockheed Martin.
Also in the quarter, a number of ILOG component-based manpower planning systems
started to reach deployment phase, notably at Clinica de Navarra in Spain,
France Telecom and MacDonalds in Singapore.
- more -
<PAGE> 91
3
ABOUT ILOG
ILOG is a leading provider of advanced software components for graphics and
resource optimization. ILOG's products enable: high-performance
data-visualization for 2D and 3D user interfaces; constraint-based reasoning
systems for resource optimization, scheduling, logistics and planning
applications; dynamic rule systems for intelligent agents and real-time data
flow control; and component services for integrating C.++ modules with real-time
and relational data sources. ILOG S.A. was founded in 1987, now employs
approximately 280 people worldwide, and is traded on NASDAQ NMS under the
symbol ILOGY.
This release contains "forward looking" information within the meaning of the
United States securities laws that involve risks and uncertainties that could
cause actual results to differ materially from those in the forward looking
statements. Potential risks and uncertainties include, without limitation, the
company's lengthy sales process, the early development stage of the market for
the company's products, the timing of significant revenues, the economic,
political and currency risks associated with the company's European, North
American and Asian operations and the company's ability to consummate the
acquisition of CPLEX.
ILOG and CPLEX are registered trademarks of ILOG S.A. and CPLEX Optimization,
Inc. respectively.
<PAGE> 92
4
ILOG S.A.
CONSOLIDATED STATEMENTS OF OPERATIONS (UNAUDITED)
(in thousands, except per share data)
<TABLE>
<CAPTION>
THREE MONTHS ENDED YEAR ENDED
June 30 June 30 June 30 June 30
1997 1996 1997 1996
------- ------- ------- -------
<S> <C> <C> <C> <C>
Revenues:
License fees $ 6,115 $6,117 $22,553 $18,848
Services 3,454 2,186 10,772 7,166
------- ------ ------- -------
Total revenues 9,569 8,303 33,325 26,014
------- ------ ------- -------
Cost of revenues
License fees 191 268 801 1,050
Services 1,900 1,182 5,962 4,458
------- ------ ------- -------
Total cost of revenues 2,091 1,450 6,763 5,508
------- ------ ------- -------
Gross profit 7,478 6,853 26,562 20,506
------- ------ ------- -------
Operating expenses
Marketing and selling 5,827 5,284 21,451 17,227
Research and development 953 1,115 4,566 4,437
General and administrative 1,123 1,047 4,292 3,554
------- ------ ------- -------
Total operating expenses 7,903 7,446 30,309 25,218
Loss from operations (425) (593) (3,747) (4,712)
Net interest income (expense) and other 154 (95) 1,124 (259)
------- ------ ------- -------
Net loss $ (271) $ (688) $(2,623) $(4,971)
------- ------ ------- -------
Net loss per share $ (0.02) $(0.10) $ (0.31) $ (0.73)
Share and share equivalents used in per
share calculations 10,949 6,951 8,377 6,855
</TABLE>
<PAGE> 93
5
ILOG S.A.
CONDENSED CONSOLIDATED BALANCE SHEETS (UNAUDITED)
(IN THOUSANDS)
<TABLE>
<CAPTION>
June 30, June 30,
1997 1996
-------- --------
<S> <C> <C>
ASSETS
Current assets
Cash and cash equivalents $26,037 $ 4,977
Accounts receivable 9,740 8,453
Other receivables and prepaid expenses 2,487 2,842
-------- --------
Total current assets 38,264 16,272
Property and equipment-net and other assets 3,044 2,813
-------- --------
Total assets $41,308 $19,085
LIABILITIES AND SHAREHOLDERS' EQUITY
Current liabilities
Accounts payable and accrued expenses $ 7,799 $ 7,510
Current debt 2,183 1,567
Deferred revenue 3,165 2,136
-------- --------
Total current liabilities 13,147 11,213
Convertible bonds -- 4,272
Long-term portion of debt 1,134 2,364
-------- --------
Total liabilities 14,281 17,849
-------- --------
Shareholders' equity
Paid-in capital 38,398 8,965
Accumulated deficit and currency translation adjustment (11,371) (7,729)
-------- --------
Total shareholders' equity 27,027 1,236
-------- --------
Total liabilities and shareholders' equity $41,308 $19,085
-------- --------
</TABLE>
- more -
<PAGE> 94
6
RESULTS AND PRESS RELEASE FOR FRENCH SHAREHOLDERS
For the benefit of our French shareholders a translation of this announcement
is also being sent to our shareholders with French addresses of record and to
anyone else upon request. In addition to facilitate their comprehension of the
Company's financial results the foregoing financial statements, which are
prepared under accounting principles generally accepted in the United States,
have been translated into French Francs at the average historical exchange
rates for the related periods and the exchange rates at the relevant balance
sheet dates. These translated financial statements for the benefit of
shareholders generally follow below.
ILOG S.A.
DONNEES FINANCIERES CONSOLIDEES CLEFS (NON AUDITEES)
(MONTANT EN MILLIERS DE FRANCS FRANCAIS, SAUF INFORMATIONS DONNEES PAR ACTION)
<TABLE>
<CAPTION>
Trimestre clos le 30 Juin Douze mois clos le 30 Juin
------------------------- --------------------------
1997 1996 1997 1996
---- ---- ---- ----
<S> <C> <C> <C> <C>
Chiffre d'affaires
Logiciels 35,202 31,319 123,277 94,524
Services 19,884 11,192 58,982 35,891
------- ------ ------- -------
Total chiffre d'affaires 55,086 42,511 182,259 130,415
------- ------ ------- -------
Prix de revient des ventes
Logiciels 1,100 1,372 4,362 5,256
Services 10,938 6,052 32,691 22,294
------- ------ ------- -------
Total prix de revient des ventes 12,037 7,424 37,053 27,550
------- ------ ------- -------
Marge Brute 43,048 35,087 145,207 102,865
------- ------ ------- -------
Frais generaux et commerciaux
Frais commerciaux 33,544 27,054 117,038 86,293
Frais de recherche et developpement 5,486 5,709 24,775 22,171
Frais generaux et administratifs 6,465 5,361 23,412 17,809
------- ------ ------- -------
Total frais generaux et commerciaux 45,495 38,124 165,225 126,273
------- ------ ------- -------
Resultat operationnel (2,447) (3,036) (20,018) (23,408)
Produits (charge) financiers et autres 887 (486) 5,923 (1,303)
------- ------ ------- -------
Resultat net (1,560) (3,523) (14,095) (24,711)
------- ------ ------- -------
Resultat net par action (0.14) (0.51) (1.68) (3.60)
Nombre moyen d'actions en circulation 10,949 6,951 8,377 6,855
-more-
</TABLE>
<PAGE> 95
7
ILOG S.A.
BILANS CONSOLIDES RESUMES (NON AUDITES)
(EN MILLIERS DE FRANCS FRANCAIS)
30 Juin 30 Juin
1997 1996
------- -------
ACTIF
Actif circulant:
Disponibilites et valeurs mobilieres de placement...... 153,096 25,632
Clients, nets.......................................... 57,271 43,534
Autres elements d'actif circulant...................... 14,623 14,637
------- ------
Total de l'actif circulant........................... 224,990 83,803
Immobilisation corporelles, nettes et autres actifs...... 17,899 14,487
------- ------
Total de l'actif......................................... 242,889 98,290
======= ======
PASIF
Passif a moins d'un an:
Fournisseurs et comptes rattaches...................... 45,858 38,677
Dette financiere a court terme......................... 12,833 8,070
Produits constates d'avance............................ 18,611 11,001
------- ------
Total passif a moins d'un an......................... 77,302 57,748
Obligations convertibles................................. -- 22,001
------- ------
Dette financiere a long terme............................ 6,670 12,175
------- ------
Total passif a court et long terme.................. 83,972 91,925
------- ------
Capitaux propres
Capital souscrit et prime d'emission................... 225,778 46,171
Report a nouveau et ecart de conversion................ (66,681) (39,805)
------- ------
Total des capitaux propres........................... 158,917 6,366
------- ------
Total du passif...................................... 242,889 98,290
======= ======
Pour l'information de nos actionnaires francais, une traduction de cette
annonce sera egalement envoyee a nos actionnaires enregistres avec une adresse
francaise et a toute personne en faisant la demande. De plus, afin de faciliter
la comprehension des resultats financiers de la seciete, les comptes
consolides precedents ont ete traduits en francs francais aux taux moyens
historiques des periodes considerees et aux taux de cloture aux dates de bilan.
<PAGE> 96
EXHIBIT E(i)
EMPLOYMENT AGREEMENT FOR TODD A. LOWE
<PAGE> 97
EXHIBIT E(i)
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "AGREEMENT"), dated as of the 20th day
of August, 1997 the ("EFFECTIVE DATE"), by and between ILOG, Inc., a California
corporation (the "COMPANY") and the undersigned employee ("EMPLOYEE") of
Company.
AGREEMENT
NOW, THEREFORE, IT IS HEREBY AGREED by and among the parties hereto as
follows:
1. EMPLOYMENT BY COMPANY; DUTIES.
(a) Employment. Subject to the terms and conditions set forth
herein, the Company hereby agrees to employ Employee in the position of
Executive Vice President, CPLEX Business, having all the duties and
responsibilities customarily associated with such positions, subject to
modification from time to time by the Company, and Employee hereby accepts such
employment by the Company. Employee's duty's shall initially include the
management of the CPLEX Technology Center, and Employee shall report to the
Chief Executive Officer of the Company's parent entity. With respect to any
modifications of Employee's position and/or duties during the term of Employee's
employment hereunder, the Company shall give due consideration to Employee's
skills and experience in determining the appropriate position and duties of
Employee and shall not, without Employee's consent, modify Employee's position
or duties in a manner inconsistent with Employee's status as a senior executive
officer of the Company; provided, however, that the foregoing shall in no way
limit the ability of the Company to terminate Employee's employment at any time
for any reason or for no reason. Such employment shall commence on the Effective
Date and shall continue until terminated as provided in Paragraph 3 hereof.
Employee shall not, without the prior written consent of Company, directly or
indirectly, alone or as part of any group, association or organization, be
actively engaged in or concerned with any other duties or pursuits which
interfere with the performance of Employee's duties to Company or which may be
contrary to the best interests of the Company.
(b) Company Policies. The employment relationship between the
parties shall also be governed by the general employment policies and practices
of the Company now in effect or which may become effective in the future,
including those relating to the protection of confidential information and trade
secrets, except that when the terms of this Agreement differ from or are in
conflict with the Company's general employment policies or practices, this
Agreement shall control.
<PAGE> 98
2. COMPENSATION AND BENEFITS.
(a) Base Salary; Bonuses; Compensation for Part-Time
Employment. As compensation for the services to be rendered by Employee during
his Full-Time Employment hereunder, including all services rendered to entities
affiliated with the Company, the Company agrees to pay Employee in accordance
with the Company's regular payroll practices, direct salary compensation at the
rate of $150,000 per year (as adjusted from time to time pursuant to the terms
hereof, the "BASE SALARY"), commencing on the Effective Date. In addition,
Employee shall be eligible to receive a performance bonus in the target amount
of $50,000, with the actual bonus to be determined based on the achievement of
performance criteria to be determined by mutual agreement of the Company and
Employee (as adjusted from time to time pursuant to the terms hereof, the
"BONUS"). For purposes of this Agreement, "FULL-TIME EMPLOYMENT" shall mean all
periods of time during which Employee is devoting all of Employee's working
time, attention and energies to performing Employee's duties to the Company. In
the event Employee desires to reduce the level of Employee's time, attention or
energies devoted to the Company to below Full-Time Employment levels, Employee
shall give the Company sixty day's written notice of such request and the
Company shall not unreasonably deny such request. Such notice shall quantify
Employee's desired level of time, attention and energies to be devoted to the
Company and the effective date of such reduction (any such periods of time
during which such reduction are in effect, "PART-TIME EMPLOYMENT"). Employee
may, subject to the consent of the Company which consent shall not be
unreasonably withheld, request to resume Full-Time Employment or further adjust
the level of Employee's Part-Time Employment upon sixty day's notice. During
any period of Part-Time Employment, Employee's Base Salary and Bonus shall be
proportionately adjusted by the Company in good faith. Such good-faith
adjustments by the Company shall be conclusive and binding on Employee.
(b) Employee Benefits. Employee shall be eligible to
participate in the employee benefit plans and arrangements which are available
or which become available, in the discretion of the Company's Board of
Directors, to other employees of the Company, subject in each case to the
generally applicable terms and conditions of the plan or arrangement in question
and to the determination of any committee administering such plan or
arrangement. The Company's presently available benefits are listed on Exhibit A
hereto. Employee's benefits shall not be reduced during periods of Part-Time
Employment, except that benefits that are based on levels of salary and bonus
compensation, such as moneys paid during periods of paid vacation, shall be
proportionately adjusted by the Company in good faith.
(c) Annual Compensation Review. Employee and the Company shall
review Employee's Base Salary and Bonus structure annually and may make mutually
agreeable adjustments at such times.
3. TERM AND TERMINATION.
(a) Term; Effect of Termination. Unless terminated by either
party as provided below, this Agreement shall remain in full force and effect
until the date three years after the Effective Date (such three year period, the
"DEFAULT TERM") and may be extended for one annual term upon the mutual
agreement of Employee and the Company (any such extension period, the "EXTENDED
TERM"). Provisions of this Agreement that expressly relate to periods of time
following
-2-
<PAGE> 99
the term of this Agreement or of Employee's employment shall survive any
termination or expiration of this Agreement or of Employee's employment with the
Company.
(b) Limitation of Liability upon Termination. If Employee's
employment terminates (or is terminated) for any reason (or for no reason),
Employee shall not be entitled to any payments, benefits, damages, awards or
compensation other than as provided in this Agreement, or as may otherwise be
available in accordance with the Company's established employee plans and
policies at the time of termination. Subject to the terms and conditions hereof,
Employee acknowledges that Employee's employment hereunder shall be on an
at-will basis and that Company may terminate Employee's employment hereunder at
any time with or without Cause.
(c) Termination for Cause; Definition of "Cause". Employee's
employment with the Company may be terminated for Cause at any time by the
Company, upon reasonable notice to Employee of the circumstances leading to such
termination for Cause. For the purpose of this Agreement, "CAUSE" shall mean (i)
the substantial and continuing failure to render services to the Company or its
affiliated entities in accordance with Employee's assigned duties (other than as
a result of Employee's Disability, as defined below, or other medically
determinable serious physical impairment), as determined by the Board of
Directors of the Company's parent entity, if such failure remains uncured for a
period of 30 days following delivery of notice to Employee of such failure; (ii)
the conviction of a felony; (iii) gross negligence, dishonesty, breach of
fiduciary duty or material breach of the terms of any confidentiality,
noncompetition or other agreement in favor of the Company or its affiliated
entities; (iv) the commission of an act of fraud or embezzlement which results
in loss, damage or injury to the Company or its affiliated entities, whether
directly or indirectly; or (v) the commission of an act which constitutes unfair
competition with the Company or its affiliated entities or which induces any
customer of the Company or its affiliated entities to break a contract with the
Company or its affiliated entities.
(d) Continuation of Option Vesting upon Certain Events. In
connection with the commencement of Employee's employment with the Company,
Employee has been or will be granted an option to purchase up to 200,000 shares
of ILOG S.A. under its 1996 Stock Option Plan pursuant to an option agreement in
substantially the form attached hereto as Exhibit B (the "OPTION"). Upon
termination of Employee's employment for any reason, Employee shall have the
right to exercise, within 90 days of such termination, the portion of Employee's
Option that is then- exercisable pursuant to the terms and conditions of such
option agreement and such option plan; provided, however, that, notwithstanding
any term of such option agreement or such option plan to the contrary, if at any
time prior to such time as the Option becomes fully vested and exercisable,
either (X) the Company terminates Employee's employment with the Company without
Employee's consent other than for Cause or (Y) Employee dies or becomes Disabled
(as defined below) then, in each case, Employee's Option shall (i) continue to
vest until fully vested and (ii) continue to be exercisable to the extent
vested, in each case, as if Employee had remained alive, not Disabled and
employed by the Company throughout the term of the Option.
(e) Continuation of Salary, Bonus and Benefits upon
Termination without Cause. If the Company terminates Employee's employment with
the Company during the Default Term without Employee's consent other than for
Cause, then, during the remaining Default Term, the
-3-
<PAGE> 100
Company shall continue to pay Employee the annual Base Salary and target Bonus
in effect immediately prior to such termination and shall continue to provide
Employee with benefits substantially equivalent to those being provided
immediately prior to such termination.
(f) Definitions of Disability and Disabled. For purposes of
this Agreement, the terms "Disabled" and "Disability" shall refer to a state of
Employee's "permanent and total disability" as such term is defined in Section
22(e)(3) of the Internal Revenue Code of 1986, as amended.
4. PROPRIETARY INFORMATION; NONINTERFERENCE. As a condition to the
effectiveness of this Agreement, Employee shall execute the Proprietary
Information and Invention Assignment Agreement attached hereto as Exhibit C.
5. MISCELLANEOUS.
(a) Notices. Any notice required or permitted hereunder shall
be given in writing and shall be deemed effectively given upon personal delivery
or upon the third day after deposit with the United States Post Office, by
registered or certified mail, postage prepaid, return receipt requested,
addressed to the Company or Employee at the addresses set forth on the signature
page of this Agreement, or at such other address as such party may designate by
ten (10) days advance written notice to the other party.
(b) Severability. Nothing in this Agreement shall be construed
so as to require the commission of any act contrary to law and wherever there is
any conflict between any provision of this Agreement and any law, statute,
ordinance, order or regulation, the latter shall prevail, but in such event any
provision of this Agreement shall be curtailed and limited only to the extent
necessary to bring it within applicable legal requirements. If any provision of
this Agreement should be held invalid or unenforceable, the remaining provisions
shall be unaffected by such a holding.
(c) Tax Matters. Employee has consulted Employee's own
independent tax and legal advisors with respect to the transactions contemplated
by this Agreement and is not relying in any respect on the Company or any
officer, employee, or other agent or representative of the Company to provide
any advice with respect to the federal, state, local or foreign tax consequences
of the transactions contemplated hereby. Employee alone will bear Employee's tax
consequences, if any, associated with the transactions contemplated hereby and
will not seek any reimbursement in connection with any such tax consequences
from the Company.
(d) Complete Agreement. This Agreement and the exhibits
attached hereto contain the entire agreement and understanding between the
parties relating to the subject matter hereof, and supersedes any prior
understandings, agreements, or representations by or between the parties,
written or oral, relating to the subject matter hereof.
(e) Successors and Assigns. This Agreement and the rights and
obligations of the parties hereto shall bind and inure to the benefit of any
successor or successors of the Company by way of reorganization, merger or
consolidation and any assignee of all or substantially all of its
-4-
<PAGE> 101
business and assets, but except as to any such successor or assignee of the
Company, neither this Agreement nor any rights or benefits hereunder may be
assigned by the Company or Employee.
(f) Amendments. Notwithstanding anything to the contrary
contained in this Agreement, the parties to this Agreement may make any
modification or amendment to this Agreement only by a mutual agreement in
writing.
(g) Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of California as such laws
are applied to contracts entered into and to be performed entirely within the
State of California..
IN WITNESS WHEREOF, the parties have executed and delivered this
Agreement on the day and year first above written.
ILOG, INC.
By:
--------------------------------------
EMPLOYEE
----------------------------------------
(Signature)
Todd Lowe
-----------------------------------------
(Print Name)
-----------------------------------------
(Print Address)
-----------------------------------------
(Print Telephone Number)
-5-
<PAGE> 102
Exhibit A
While Employee remains employed with the Company, Employee shall be eligible for
all benefits offered to Company employees generally, currently including Aetna
Medical HMO/PPO coverage, dental and vision insurance plans, Accidental Death &
Disability Insurance, Section 125 pre-tax medical and dependent care expense
reimbursement plan, and 401(k) plan. In addition, Employee shall be entitled to
paid vacation during each year of employment of the greater of (i) four weeks or
(ii) the then-current annual paid vacation allowed by the Company's standard
benefit policy (currently three weeks).
-6-
<PAGE> 103
Exhibit B
(Form of Option Agreement is Attached)
-7-
<PAGE> 104
ILOG S.A.
1996 STOCK OPTION GRANT AGREEMENT
PART I
NOTICE OF STOCK OPTION GRANT
Mr. Todd Lowe
You have been granted an Option to subscribe Shares of the
Company, subject to the terms and conditions of the 1996 Stock Option Plan, as
amended (the "Plan"), and this Option Agreement. Unless otherwise defined
herein, the terms defined in the Plan shall have the same defined meanings in
this Option Agreement.
Grant Number: SO96/97/
Date of Grant: August 20, 1997
Vesting Commencement Date: August 20, 1997
Vesting period: Four years
Share Per Value: FF 4.00
Exercise Price per Share: FF
Total Number of Shares Granted: 200,000
Total Exercise Price: FF
Type of Option: Incentive Stock Option
Term/Expiration Date: Ten Years
<PAGE> 105
VESTING SCHEDULE:
This Option may be exercised, in whole or in part, in
accordance with the following schedule:
25% of the Shares subject to the Option shall vest twelve
months after the Vesting Commencement Date, and 1/48 of the Shares subject to
the Option shall vest each month thereafter.
Except as may be provided in that certain Employment Agreement
by and between Optionee and ILOG, Inc. dated as of August 20, 1997 (the
"Employment Agreement"), vesting shall continue only during Optionee's
Continuous Status as a Beneficiary.
TERMINATION PERIOD:
Except as provided in the Employment Agreement, this Option
may be exercised for ninety (90) days after termination of the Optionee's
employment or term of office with the Company or an Affiliated Company as the
case may be. Upon the Death or Disability of the Optionee, this Option may be
exercised for such longer period as provided in the Plan or the Employment
Agreement. Save as provided in the Plan, in no event shall this Option be
exercised later than the Term/Expiration Date as provided above.
By his signature and the signature of the Company's
representative below, the Optionee and the Company agree that this Option is
granted under and, except to the extent inconsistent with the Employment
Agreement, governed by the terms and conditions of the Plan and this Option
Agreement. The Optionee has reviewed the Plan and this Option Agreement in their
entirety, has had the opportunity to obtain advice of counsel prior to executing
this Option Agreement and fully understands all provisions of the Plan and
Option Agreement. The Optionee hereby agrees to accept as binding, conclusive
and final all decisions or interpretations of the Administrator upon any
questions relating to the Plan and Option Agreement which are not governed by
the Employment Agreement. The Optionee further agrees to notify the Company upon
any change in the residence address indicated below.
The Company and the Optionee recognize that the Plan has been
prepared both in the French and the English language. The French version is the
version that binds the parties, notwithstanding this, the English version
represents an acceptable translation and, consequently, no official translation
will be required for the interpretation of this agreement.
OPTIONEE: ILOG S.A.
- ---------------------------------- -------------------------------------
Signature By:
Print Name
- ----------------------------------
Residence Address
- ----------------------------------
-2-
<PAGE> 106
ILOG S. A.
1996 STOCK OPTION GRANT AGREEMENT
PART II
TERMS AND CONDITIONS
1. Grant of Option. The Plan Administrator of the Company hereby grants
to the Optionee named in the Notice of Grant attached as Part I of this
Agreement (the "Optionee"), an option (the "Option") to subscribe the number of
Shares, as set forth in the Notice of Grant, at the exercise price per Share set
forth in the Notice of Grant (the "Exercise Price"), subject to the terms and
conditions of the 1996 Stock Option Plan, as amended, which is incorporated
herein by reference. In the event of a conflict between the terms and conditions
of the Plan and the terms and conditions of this Option Agreement, the terms and
conditions of the Plan shall prevail.
If designated in the Notice of Grant as an Incentive Stock
Option, this Option is intended to qualify as an Incentive Stock Option under
Section 422 of the Code. However, if this Option is intended to be an Incentive
Stock Option, to the extent that it exceeds the $100,000 rule of Code Section
422(d) it shall be treated as a Non-statutory Stock Option.
2. Exercise of Option.
(a) Right to Exercise. This Option is exercisable during its term in
accordance with the Vesting Schedule set out in the Notice of Grant and the
applicable provisions of the Plan and this Option Agreement. In the event of
Optionee's death, disability or other termination of Optionee's employment or
term of office, the exercisability of the Option is governed by the applicable
provisions of the Plan and this Option Agreement.
(b) Method of Exercise. This Option is exercisable by delivery of an
exercise notice, in the form attached hereto (the "Exercise Notice"), comprising
a share subscription form (bulletin de souscription) which shall state the
election to exercise the Option, the number of Shares in respect of which the
Option is being exercised (the "Exercised Shares"), and such other
representations and agreements as may be required by the Company pursuant to the
provisions of the Plan. The Exercise Notice shall be signed by the Optionee and
shall be delivered in person or by certified mail to the Company or its
designated representative or by facsimile message to be immediately confirmed by
certified mail to the Company. The Exercise Notice shall be accompanied by
payment of the aggregate Exercise Price as to all Exercised Shares. This Option
shall be deemed to be exercised upon receipt by the Company of such fully
executed Exercise Notice accompanied by such aggregate Exercise Price.
<PAGE> 107
No Shares shall be issued pursuant to the exercise of this
Option unless such issuance and exercise complies with all relevant provisions
of law as set out under Section 14(a) of the Plan.
Upon the issuance of the Shares, the Optionee shall be
entitled to receive such Shares in the form of American Depositary Shares by
completing and signing the appropriate box of the Exercise Notice attached
hereto.
3. Method of Payment. Payment of the aggregate Exercise Price shall be
by any of the following, or a combination thereof, at the election of the
Optionee:
(1) wire transfer;
(2) check;
(3) delivery of a properly executed notice together with such
other documentation as the Administrator and the broker, if
applicable, shall require to effect exercise of the Option and
delivery to the Company of the sale or loan proceeds required
to pay the exercise price; or
(4) any combination of the foregoing methods of payment.
4. Non-Transferability of Option. This Option may not be transferred in
any manner otherwise than by will or by the laws of descent or distribution and
may be exercised during the lifetime of the Optionee only by the Optionee. The
terms of the Plan and this Option Agreement shall be binding upon the executors,
administrators, heirs, successors and assigns of the Optionee.
5. Terms of Option. Subject as provided in the Plan, this Option may be
exercised only within the term set out in the Notice of Grant, and may be
exercised during such term only in accordance with the Plan and the terms of
this Option Agreement.
6. Entire Agreement; Governing Law. The Plan is incorporated herein by
reference. The Plan, this Option Agreement and the Employment Agreement
constitute the entire agreement of the parties with respect to the subject
matter hereof and supersede in their entirety all prior undertakings and
agreements of the Company and Optionee with respect to the subject matter
hereof, and may not be modified adversely to the Optionee's interest except by
means of a writing signed by the Company and Optionee. In the event of any
conflict between the provisions of this Option Agreement and the provisions of
the Employment Agreement, the Employment Agreement shall, to the extent of such
conflict, control. This Option Agreement is governed by the laws of the Republic
of France.
Any claim or dispute arising under the Plan or this Agreement shall be subject
to the exclusive jurisdiction of the Tribunal de Grande Instance of Creteil.
<PAGE> 108
CONSENT OF SPOUSE
(TO BE SIGNED BY RESIDENT OF CALIFORNIA AND OTHER COMMUNITY PROPERTY STATES)
The undersigned spouse of Optionee has read and hereby
approves the terms and conditions of the Plan and this Option Agreement. In
consideration of the Company's granting his or her spouse the right to subscribe
Shares as set forth in the Plan and this Option Agreement, the undersigned
hereby agrees to be irrevocably bound by the terms and conditions of the Plan
and this Option Agreement and further agrees that any community property
interest shall be similarly bound. The undersigned hereby appoints the
undersigned's spouse as attorney-in-fact for the undersigned with respect to any
amendment or exercise of rights under the Plan or this Option Agreement.
----------------------------------
Spouse of Optionee
-3-
<PAGE> 109
EXHIBIT A
ILOG S.A.
SOCIETE ANONYME HAVING A SHARE CAPITAL OF 24,798,780 FRANCS
REGISTERED OFFICE: []
1996 STOCK OPTION PLAN
EXERCISE NOTICE
(SHARE SUBSCRIPTION FORM)
ILOG S.A.
[ ]
Date:
Attention:
1. Exercise of Option. Effective as of today, _______________________,
199_, the undersigned hereby elects to subscribe ( ________ ) shares (the
"Shares") of the Common Stock of ILOG S.A. (the "Company") under and pursuant to
the Company's 1996 Stock Option Plan (the "Plan") adopted by the Board of
Directors on May 30, 1996, as amended and the Stock Option Agreement dated
_______________ , 199_, (the "Option Agreement"). The subscription price for the
Shares shall be FF ___________ , as required by the Option Agreement.
2. Delivery of Payment. Purchaser herewith delivers to the Company the
full subscription price for the Shares.
3. Representation of Optionee. The Optionee acknowledges that Optionee
has received, read and understood the Plan and the Option Agreement and agrees
to abide by and be bound by their terms and conditions.
4. Rights as Shareholder. Until the issuance (as evidenced by the
appropriate entry on the books of the Company) of the Shares, the Optionee shall
have, as an Optionee, no right to vote or receive dividends or any other rights
as a shareholder shall exist with respect to the Optioned Stock, except those
the Optionee may have as a shareholder of the Company. No adjustment will be
made
<PAGE> 110
for rights in respect of which the record date is prior to the issuance date for
the Shares, except as provided in Section 11 of the Plan.
5. Tax Consultation. The Optionee understands that Optionee may suffer
adverse tax consequences as a result of Optionee's subscription or disposition
of the Shares. Optionee represents that Optionee has consulted with any tax
consultants Optionee deems advisable in connection with the subscription or
disposition of the Shares. The Optionee is not relying on the Company for any
tax advice.
6. Entire Agreement; Governing Law. The Plan and Option Agreement are
incorporated herein by reference. Reference is made to that certain Employment
Agreement by and between Optionee and ILOG, Inc. dated as of August __, 1997
(the "Employment Agreement"). This Exercise Notice, the Plan the Option
Agreement and the Employment Agreement constitute the entire agreement of the
parties with respect to the subject matter hereof and supersede in their
entirety all prior undertakings and agreements of the Company and Optionee with
respect to the subject matter hereof, and may not be modified adversely to the
Optionee's interest except by means of a writing signed by the Company and
Purchaser. In the event of any conflict between the provisions of this Exercise
Notice and the provisions of the Employment Agreement, the Employment Agreement
shall, to the extent of such conflict, control. This Exercise Notice is governed
by the laws of the Republic of France.
This Exercise Notice is delivered in two originals, one of which shall be
returned to the Optionee.
Submitted by: Accepted by:
OPTIONEE(*) ILOG S.A.
- --------------------------------
Signature by:
- -------------------------------- Its: CEO
Print Name
ADDRESS: ADDRESS:
- -------------------------------- ILOG S.A.
- --------------
(*) The signature of the Optionee must be preceded by the following
manuscript mention "accepted for formal and irrevocable subscription of ______
Shares."
-2-
<PAGE> 111
EXHIBIT C
(Form of Confidential Information and Invention Assignment Agreement)
-8-
<PAGE> 112
ILOG, INC.
CONFIDENTIAL INFORMATION AND
INVENTION ASSIGNMENT AGREEMENT
As a condition of my employment with ILOG, INC., its subsidiaries,
affiliates, successors or assigns (together the "COMPANY"), and in consideration
of my employment with the Company and my receipt of the compensation now and
hereafter paid to me by Company, I agree to the following:
1. CONFIDENTIAL INFORMATION.
(a) COMPANY INFORMATION. I agree at all times during the term
of my employment and thereafter, to hold in strictest confidence, and not to
use, except for the benefit of the Company, or to disclose to any person, firm
or corporation without written authorization of the Company, any Confidential
Information of the Company. I understand that "CONFIDENTIAL INFORMATION" means
any Company proprietary information, technical data, trade secrets or know-how,
including, but not limited to, research, product plans, products, services,
customer lists and customers (including, but not limited to, customers of the
Company on whom I called or with whom I became acquainted during the term of my
employment), markets, software, developments, inventions, processes, formulas,
technology, designs, drawings, engineering, hardware configuration information,
marketing, finances or other business information disclosed to me by the Company
either directly or indirectly in writing, orally or by drawings or observation
of parts or equipment. I further understand that Confidential Information does
not include any of the foregoing items which has become publicly known and made
generally available through no wrongful act of mine or of others who were under
confidentiality obligations as to the item or items involved.
(b) FORMER EMPLOYER INFORMATION. I agree that I will not,
during my employment with the Company, improperly use or disclose any
proprietary information or trade secrets of any former or concurrent employer or
other person or entity and that I will not bring onto the premises of the
Company any unpublished document or proprietary information belonging to any
such employer, person or entity unless consented to in writing by such employer,
person or entity.
(c) THIRD PARTY INFORMATION. I recognize that the Company has
received and in the future will receive from third parties their confidential or
proprietary information subject to a duty on the Company's part to maintain the
confidentiality of such information and to use it only for certain limited
purposes. I agree to hold all such confidential or proprietary information in
the strictest confidence and not to disclose it to any person, firm or
corporation or to use it except as necessary in carrying out my work for the
Company consistent with the Company's agreement with such third party.
2. INVENTIONS.
(a) INVENTIONS RETAINED AND LICENSED. I have attached hereto,
as Exhibit A, a list describing all inventions, original works of authorship,
developments, improvements, and trade secrets which were made by me prior to my
employment with CPLEX or the Company (collectively referred to as "PRIOR
INVENTIONS"), which belong to me, which relate to the Company's proposed
business, products
<PAGE> 113
or research and development, and which are not assigned to the Company
hereunder; or, if no such list is attached, I represent that there are no such
Prior Inventions. If in the course of my employment with the Company, I
incorporate into a Company product, process or machine a Prior Invention owned
by me or in which I have an interest, the Company is hereby granted and shall
have a nonexclusive, royalty-free, irrevocable, perpetual, worldwide license to
make, have made, modify, use and sell such Prior Invention as part of or in
connection with such product, process or machine.
(b) ASSIGNMENT OF INVENTIONS. I agree that I will promptly
make full written disclosure to the Company, will hold in trust for the sole
right and benefit of the Company, and hereby assign to the Company, or its
designee, all my right, title, and interest in and to any and all inventions,
original works of authorship, developments, concepts, improvements or trade
secrets, whether or not patentable or registrable under copyright or similar
laws, which I may solely or jointly conceive or develop or reduce to practice,
or cause to be conceived or developed or reduced to practice, during the period
of time I am in the employ of the Company (collectively referred to as
"INVENTIONS"), except as provided in Section 2(e) below. I further acknowledge
that, except as provided in Section 2(e) below, all original works of authorship
which are made by me (solely or jointly with others) within the scope of and
during the period of my employment with the Company and which are protectible by
copyright are "works made for hire," as that term is defined in the United
States Copyright Act.
(c) MAINTENANCE OF RECORDS. I agree to keep and maintain
adequate and current written records of all Inventions made by me (solely or
jointly with others) during the term of my employment with the Company. The
records will be in the form of notes, sketches, drawings, and any other format
that may be specified by the Company. The records will be available to and
remain the sole property of the Company at all times.
(d) PATENT AND COPYRIGHT REGISTRATIONS. I agree to assist the
Company, or its designee, at the Company's expense, in every proper way to
secure the Company's rights in the Inventions and any copyrights, patents, mask
work rights or other intellectual property rights relating thereto in any and
all countries, including the disclosure to the Company of all pertinent
information and data with respect thereto, the execution of all applications,
specifications, oaths, assignments and all other instruments which the Company
shall deem necessary in order to apply for and obtain such rights and in order
to assign and convey to the Company, its successors, assigns, and nominees the
sole and exclusive rights, title and interest in and to such Inventions, and any
copyrights, patents, mask work rights or other intellectual property rights
relating thereto. I further agree that my obligation to execute or cause to be
executed, when it is in my power to do so, any such instrument or papers shall
continue after the termination of this Agreement. If the Company is unable
because of my mental or physical incapacity or for any other reason to secure my
signature to apply for or to pursue any application for any United States or
foreign patents or copyright registrations covering Inventions or original works
of authorship assigned to the Company as above, then I hereby irrevocably
designate and appoint the Company and its duly authorized officers and agents as
my agent and attorney in fact, to act for and in my behalf and stead to execute
and file any such applications and to do all other lawfully permitted acts to
further the prosecution and issuance of letters patent or copyright
registrations thereon with the same legal force and effect as if executed by me.
2
<PAGE> 114
(e) EXCEPTION TO ASSIGNMENTS. I understand that the provisions
of this Agreement requiring assignment of Inventions to the Company do not apply
to any invention which qualifies fully under the provisions of California Labor
Code Section 2870 (attached hereto as Exhibit A).
3. CONFLICTING EMPLOYMENT. I agree that, during the term of my
employment with the Company, I will not engage in any other employment,
occupation, consulting or other business activity directly related to the
business in which the Company is now involved or becomes involved during the
term of my employment, nor will I engage in any other activities that conflict
with my obligations to the Company provided, however, that the Company
recognizes and agrees to my continued academic association and activities with
respect to Rice University.
4. RETURNING COMPANY DOCUMENTS. I agree that, at the time of leaving
the employ of the Company, I will deliver to the Company (and will not keep in
my possession, recreate or deliver to anyone else) any and all devices, records,
data, notes, reports, proposals, lists, correspondence, specifications, drawings
blueprints, sketches, materials, equipment, other documents or property, or
reproductions of any aforementioned items developed by me pursuant to my
employment with the Company or otherwise belonging to the Company, its
successors or assigns. In the event of the termination of my employment, I agree
to sign and deliver the "Termination Certification" attached hereto as Exhibit
B.
5. NOTIFICATION OF NEW EMPLOYER. In the event that I leave the employ
of the Company, I hereby grant consent to notification by the Company to my new
employer about my rights and obligations under this Agreement.
6. REPRESENTATIONS. I agree to execute any proper oath or verify any
proper document required to carry out the terms of this Agreement. I represent
that my performance of all the terms of this Agreement will not breach any
agreement to keep in confidence proprietary information acquired by me in
confidence or in trust prior to my employment by the Company. I have not entered
into, and I agree I will not enter into, any oral or written agreement in
conflict herewith.
7. ARBITRATION AND EQUITABLE RELIEF.
(a) ARBITRATION. Except as provided in Section 8(b) below, I
agree that any dispute or controversy arising out of or relating to any
interpretation, construction, performance or breach of this Agreement, shall be
settled by arbitration to be held in Santa Clara County, California, in
accordance with the rules then in effect of the American Arbitration
Association. The arbitrator may grant injunctions or other relief in such
dispute or controversy. The decision of the arbitrator shall be final,
conclusive and binding on the parties to the arbitration. Judgment may be
entered on the arbitrator's decision in any court having jurisdiction. The
Company and I shall each pay one-half of the costs and expenses of such
arbitration, and each of us shall separately pay our counsel fees and expenses.
(b) EQUITABLE REMEDIES. I agree that it would be impossible or
inadequate to measure and calculate the Company's damages from any breach of the
covenants set forth in Sections 1, 2, and 4 herein. Accordingly, I agree that if
I breach any of such Sections, the Company will have available, in addition to
any other right or remedy available, the right to obtain an injunction from a
court of competent jurisdiction restraining such breach or threatened breach and
to specific performance of any such provision of this Agreement.
3
<PAGE> 115
8. GENERAL PROVISIONS.
(a) GOVERNING LAW; CONSENT TO PERSONAL JURISDICTION. This
Agreement will be governed by the laws of the State of California. I hereby
expressly consent to the personal jurisdiction of the state and federal courts
located in California for any lawsuit filed there against me by the Company
arising from or relating to this Agreement.
(b) ENTIRE AGREEMENT. This Agreement sets forth the entire
agreement and understanding between the Company and me relating to the subject
matter herein and merges all prior discussions between us. No modification of or
amendment to this Agreement, nor any waiver of any rights under this agreement,
will be effective unless in writing signed by the party to be charged. Any
subsequent change or changes in my duties, salary or compensation will not
affect the validity or scope of this Agreement.
(c) SEVERABILITY. If one or more of the provisions in this
Agreement are deemed void by law, then the remaining provisions will continue in
full force and effect.
(d) SUCCESSORS AND ASSIGNS. This Agreement will be binding
upon my heirs, executors, administrators and other legal representatives and
will be for the benefit of the Company, its successors, and its assigns.
Date: August 20, 1997
-----------------------------------
Signature
Employee
- ------------------------
Witness
4
<PAGE> 116
EXHIBIT A
CALIFORNIA LABOR CODE SECTION 2870
EMPLOYMENT AGREEMENTS; ASSIGNMENT OF RIGHTS
"(a) Any provision in an employment agreement which provides that an
employee shall assign, or offer to assign, any of his or her rights in an
invention to his or her employer shall not apply to an invention that the
employee developed entirely on his or her own time without using the employer's
equipment, supplies, facilities, or trade secret information except for those
inventions that either:
(1) Relate at the time of conception or reduction to practice
of the invention to the employer's business, or actual or demonstrably
anticipated research or development of the employer.
(2) Result from any work performed by the employee for the
employer.
(b) To the extent a provision in an employment agreement purports to
require an employee to assign an invention otherwise excluded from being
required to be assigned under subdivision (a), the provision is against the
public policy of this state and is unenforceable."
5
<PAGE> 117
EXHIBIT B
ILOG, INC.
TERMINATION CERTIFICATION
This is to certify that I do not have in my possession, nor have I
failed to return, any devices, records, data, notes, reports, proposals, lists,
correspondence, specifications, drawings, blueprints, sketches, materials,
equipment, other documents or property, or reproductions of any aforementioned
items belonging to ILOG, Inc., its subsidiaries, affiliates, successors or
assigns (together, the "COMPANY").
I further certify that I have complied with all the terms of the
Company's Confidential Information and Invention Assignment Agreement signed by
me, including the reporting of any inventions and original works of authorship
(as defined therein), conceived or made by me (solely or jointly with others)
covered by that agreement.
I further agree that, in compliance with the Confidential Information
and Invention Assignment Agreement, I will preserve as confidential all trade
secrets, confidential knowledge, data or other proprietary information relating
to products, processes, know-how, designs, formulas, developmental or
experimental work, computer programs, data bases, other original works of
authorship, customer lists, business plans, financial information or other
subject matter pertaining to any business of the Company or any of its
employees, clients, consultants or licensees.
I further agree that for twelve (12) months from this date, I will not
hire any employees of the Company and I will not solicit, induce, recruit or
encourage any of the Company's employees to leave their employment.
Date:
--------------
-----------------------------------
(Employee's Signature)
Todd Lowe
-----------------------------------
(Type/Print Employee's Name)
6
<PAGE> 118
EXHIBIT E(ii)
EMPLOYMENT AGREEMENT FOR JANET LOWE
<PAGE> 119
EXHIBIT E(ii)
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "AGREEMENT"), dated as of the _____ day
of August, 1997 the ("EFFECTIVE DATE"), by and between ILOG, Inc., a California
corporation (the "COMPANY") and the undersigned employee ("EMPLOYEE") of
Company.
AGREEMENT
NOW, THEREFORE, IT IS HEREBY AGREED by and among the parties hereto as
follows:
1. EMPLOYMENT BY COMPANY; DUTIES.
(a) Employment. Subject to the terms and conditions set forth
herein, the Company hereby agrees to employ Employee in the position of
Strategic Marketing Director, having all the duties and responsibilities
customarily associated with such positions, subject to modification from time to
time by the Company, and Employee hereby accepts such employment by the Company.
Employee's duties shall initially include the strategic market planning for
CPLEX-related products, and Employee shall report to the Company's Executive
Vice President, CPLEX Business. With respect to any modifications of Employee's
position and/or duties during the term of Employee's employment hereunder, the
Company shall give due consideration to Employee's skills and experience in
determining the appropriate position and duties of Employee and shall not,
without Employee's consent, modify Employee's position or duties in a manner
inconsistent with Employee's status as a director-level employee of the Company;
provided, however, that the foregoing shall in no way limit the ability of the
Company to terminate Employee's employment at any time for any reason or for no
reason. Such employment shall commence on the Effective Date and shall continue
until terminated as provided in Paragraph 3 hereof. Employee shall not, without
the prior written consent of Company, directly or indirectly, alone or as part
of any group, association or organization, be actively engaged in or concerned
with any other duties or pursuits which interfere with the performance of
Employee's duties to Company or which may be contrary to the best interests of
the Company.
(b) Company Policies. The employment relationship between the
parties shall also be governed by the general employment policies and practices
of the Company now in effect or which may become effective in the future,
including those relating to the protection of confidential information and trade
secrets, except that when the terms of this Agreement differ from or are in
conflict with the Company's general employment policies or practices, this
Agreement shall control.
<PAGE> 120
2. COMPENSATION AND BENEFITS.
(a) Base Salary; Bonuses; Compensation for Part-Time
Employment. As compensation for the services to be rendered by Employee during
her Full-Time Employment hereunder, including all services rendered to entities
affiliated with the Company, the Company agrees to pay Employee in accordance
with the Company's regular payroll practices, direct salary compensation at the
rate of $100,000 per year (as adjusted from time to time pursuant to the terms
hereof, the "BASE SALARY"), commencing on the Effective Date. In addition,
Employee shall be eligible to receive a performance bonus in the target amount
of $30,000, with the actual bonus to be determined based on the achievement of
performance criteria to be determined by mutual agreement of the Company and
Employee (as adjusted from time to time pursuant to the terms hereof, the
"BONUS"). For purposes of this Agreement, "FULL-TIME EMPLOYMENT" shall mean all
periods of time during which Employee is devoting all of Employee's working
time, attention and energies to performing Employee's duties to the Company. In
the event Employee desires to reduce the level of Employee's time, attention or
energies devoted to the Company to below Full-Time Employment levels, Employee
shall give the Company sixty day's written notice of such request and the
Company shall not unreasonably deny such request. Such notice shall quantify
Employee's desired level of time, attention and energies to be devoted to the
Company and the effective date of such reduction (any such periods of time
during which such reduction are in effect, "PART-TIME EMPLOYMENT"). Employee
may, subject to the consent of the Company which consent shall not be
unreasonably withheld, request to resume Full-Time Employment or further adjust
the level of Employee's Part-Time Employment upon sixty day's notice. During any
period of Part-Time Employment, Employee's Base Salary and Bonus shall be
proportionately adjusted by the Company in good faith. Such good-faith
adjustments by the Company shall be conclusive and binding on Employee.
(b) Employee Benefits. Employee shall be eligible to
participate in the employee benefit plans and arrangements which are available
or which become available, in the discretion of the Company's Board of
Directors, to other employees of the Company, subject in each case to the
generally applicable terms and conditions of the plan or arrangement in question
and to the determination of any committee administering such plan or
arrangement. The Company's presently available benefits are listed on Exhibit A
hereto. Employee's benefits shall not be reduced during periods of Part-Time
Employment, except that benefits that are based on levels of salary and bonus
compensation, such as moneys paid during periods of paid vacation, shall be
proportionately adjusted by the Company in good faith.
(c) Annual Compensation Review. Employee and the Company shall
review Employee's Base Salary and Bonus structure annually and may make mutually
agreeable adjustments at such times.
3. TERM AND TERMINATION.
(a) Term; Effect of Termination. Unless terminated by either
party as provided below, this Agreement shall remain in full force and effect
until the date three years after the Effective Date (such three year period, the
"DEFAULT TERM") and may be extended for one annual term upon the mutual
agreement of Employee and the Company (any such extension period, the "EXTENDED
TERM"). Provisions of this Agreement that expressly relate to periods of time
following
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<PAGE> 121
the term of this Agreement or of Employee's employment shall survive any
termination or expiration of this Agreement or of Employee's employment with the
Company.
(b) Limitation of Liability upon Termination. If Employee's
employment terminates (or is terminated) for any reason (or for no reason),
Employee shall not be entitled to any payments, benefits, damages, awards or
compensation other than as provided in this Agreement, or as may otherwise be
available in accordance with the Company's established employee plans and
policies at the time of termination. Subject to the terms and conditions hereof,
Employee acknowledges that Employee's employment hereunder shall be on an
at-will basis and that Company may terminate Employee's employment hereunder at
any time with or without Cause.
(c) Termination for Cause; Definition of "Cause". Employee's
employment with the Company may be terminated for Cause at any time by the
Company, upon reasonable notice to Employee of the circumstances leading to such
termination for Cause. For the purpose of this Agreement, "CAUSE" shall mean (i)
the substantial and continuing failure to render services to the Company or its
affiliated entities in accordance with Employee's assigned duties (other than as
a result of Employee's Disability, as defined below, or other medically
determinable serious physical impairment), as determined by the Board of
Directors of the Company's parent entity, if such failure remains uncured for a
period of 30 days following delivery of notice to Employee of such failure; (ii)
the conviction of a felony; (iii) gross negligence, dishonesty, breach of
fiduciary duty or material breach of the terms of any confidentiality,
noncompetition or other agreement in favor of the Company or its affiliated
entities; (iv) the commission of an act of fraud or embezzlement which results
in loss, damage or injury to the Company or its affiliated entities, whether
directly or indirectly; or (v) the commission of an act which constitutes unfair
competition with the Company or its affiliated entities or which induces any
customer of the Company or its affiliated entities to break a contract with the
Company or its affiliated entities.
(d) Continuation of Option Vesting upon Certain Events. In
connection with the commencement of Employee's employment with the Company,
Employee has been or will be granted an option to purchase up to 200,000 shares
of ILOG S.A. under its 1996 Stock Option Plan pursuant to an option agreement in
substantially the form attached hereto as Exhibit B (the "OPTION"). Upon
termination of Employee's employment for any reason, Employee shall have the
right to exercise, within 90 days of such termination, the portion of Employee's
Option that is then-exercisable pursuant to the terms and conditions of such
option agreement and such option plan; provided, however, that, notwithstanding
any term of such option agreement or such option plan to the contrary, if at any
time prior to such time as the Option becomes fully vested and exercisable,
either (X) the Company terminates Employee's employment with the Company without
Employee's consent other than for Cause or (Y) Employee dies or becomes Disabled
(as defined below) then, in each case, Employee's Option shall (i) continue to
vest until fully vested and (ii) continue to be exercisable to the extent
vested, in each case, as if Employee had remained alive, not Disabled and
employed by the Company throughout the term of the Option.
(e) Continuation of Salary, Bonus and Benefits upon
Termination without Cause. If the Company terminates Employee's employment with
the Company during the Default Term without Employee's consent other than for
Cause, then, during the remaining Default Term, the
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<PAGE> 122
Company shall continue to pay Employee the annual Base Salary and target Bonus
in effect immediately prior to such termination and shall continue to provide
Employee with benefits substantially equivalent to those being provided
immediately prior to such termination.
(f) Definitions of Disability and Disabled. For purposes of
this Agreement, the terms "Disabled" and "Disability" shall refer to a state of
Employee's "permanent and total disability" as such term is defined in Section
22(e)(3) of the Internal Revenue Code of 1986, as amended.
4. PROPRIETARY INFORMATION; NONINTERFERENCE. As a condition to the
effectiveness of this Agreement, Employee shall execute the Proprietary
Information and Invention Assignment Agreement attached hereto as Exhibit C.
5. MISCELLANEOUS.
(a) Notices. Any notice required or permitted hereunder shall
be given in writing and shall be deemed effectively given upon personal delivery
or upon the third day after deposit with the United States Post Office, by
registered or certified mail, postage prepaid, return receipt requested,
addressed to the Company or Employee at the addresses set forth on the signature
page of this Agreement, or at such other address as such party may designate by
ten (10) days advance written notice to the other party.
(b) Severability. Nothing in this Agreement shall be construed
so as to require the commission of any act contrary to law and wherever there is
any conflict between any provision of this Agreement and any law, statute,
ordinance, order or regulation, the latter shall prevail, but in such event any
provision of this Agreement shall be curtailed and limited only to the extent
necessary to bring it within applicable legal requirements. If any provision of
this Agreement should be held invalid or unenforceable, the remaining provisions
shall be unaffected by such a holding.
(c) Tax Matters. Employee has consulted Employee's own
independent tax and legal advisors with respect to the transactions contemplated
by this Agreement and is not relying in any respect on the Company or any
officer, employee, or other agent or representative of the Company to provide
any advice with respect to the federal, state, local or foreign tax consequences
of the transactions contemplated hereby. Employee alone will bear Employee's tax
consequences, if any, associated with the transactions contemplated hereby and
will not seek any reimbursement in connection with any such tax consequences
from the Company.
(d) Complete Agreement. This Agreement and the exhibits
attached hereto contain the entire agreement and understanding between the
parties relating to the subject matter hereof, and supersedes any prior
understandings, agreements, or representations by or between the parties,
written or oral, relating to the subject matter hereof.
(e) Successors and Assigns. This Agreement and the rights and
obligations of the parties hereto shall bind and inure to the benefit of any
successor or successors of the Company by way of reorganization, merger or
consolidation and any assignee of all or substantially all of its
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<PAGE> 123
business and assets, but except as to any such successor or assignee of the
Company, neither this Agreement nor any rights or benefits hereunder may be
assigned by the Company or Employee.
(f) Amendments. Notwithstanding anything to the contrary
contained in this Agreement, the parties to this Agreement may make any
modification or amendment to this Agreement only by a mutual agreement in
writing.
(g) Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of California as such laws
are applied to contracts entered into and to be performed entirely within the
State of California.
IN WITNESS WHEREOF, the parties have executed and delivered this
Agreement on the day and year first above written.
ILOG, INC.
By:
-----------------------------------
EMPLOYEE
--------------------------------------
(Signature)
Janet Lowe
--------------------------------------
(Print Name)
--------------------------------------
--------------------------------------
(Print Address)
--------------------------------------
(Print Telephone Number)
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<PAGE> 124
Exhibit A
While Employee remains employed with the Company, Employee shall be eligible for
all benefits offered to Company employees generally, currently including Aetna
Medical HMO/PPO coverage, dental and vision insurance plans, Accidental Death &
Disability Insurance, Section 125 pre-tax medical and dependent care expense
reimbursement plan, and 401(k) plan. In addition, Employee shall be entitled to
paid vacation during each year of employment of the greater of (i) four weeks or
(ii) the then-current annual paid vacation allowed by the Company's standard
benefit policy (currently three weeks).
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<PAGE> 125
Exhibit B
(Form of Option Agreement is Attached)
-7-
<PAGE> 126
ILOG S.A.
1996 STOCK OPTION GRANT AGREEMENT
PART I
NOTICE OF STOCK OPTION GRANT
Ms. Janet Lowe
You have been granted an Option to subscribe Shares of the
Company, subject to the terms and conditions of the 1996 Stock Option Plan, as
amended (the "Plan"), and this Option Agreement. Unless otherwise defined
herein, the terms defined in the Plan shall have the same defined meanings in
this Option Agreement.
Grant Number: SO96/97/
Date of Grant: August 20, 1997
Vesting Commencement Date: August 20, 1997
Vesting period: Four years
Share Per Value: FF 4.00
Exercise Price per Share: FF
Total Number of Shares Granted: 200,000
Total Exercise Price: FF
Type of Option: Incentive Stock Option
Term/Expiration Date: Ten Years
<PAGE> 127
VESTING SCHEDULE:
This Option may be exercised, in whole or in part, in
accordance with the following schedule:
25% of the Shares subject to the Option shall vest twelve
months after the Vesting Commencement Date, and 1/48 of the Shares subject to
the Option shall vest each month thereafter.
Except as may be provided in that certain Employment Agreement
by and between Optionee and ILOG, Inc. dated as of August 20, 1997 (the
"Employment Agreement"), vesting shall continue only during Optionee's
Continuous Status as a Beneficiary.
TERMINATION PERIOD:
Except as provided in the Employment Agreement, this Option
may be exercised for ninety (90) days after termination of the Optionee's
employment or term of office with the Company or an Affiliated Company as the
case may be. Upon the Death or Disability of the Optionee, this Option may be
exercised for such longer period as provided in the Plan or the Employment
Agreement. Save as provided in the Plan, in no event shall this Option be
exercised later than the Term/Expiration Date as provided above.
By his signature and the signature of the Company's
representative below, the Optionee and the Company agree that this Option is
granted under and, except to the extent inconsistent with the Employment
Agreement, governed by the terms and conditions of the Plan and this Option
Agreement. The Optionee has reviewed the Plan and this Option Agreement in their
entirety, has had the opportunity to obtain advice of counsel prior to executing
this Option Agreement and fully understands all provisions of the Plan and
Option Agreement. The Optionee hereby agrees to accept as binding, conclusive
and final all decisions or interpretations of the Administrator upon any
questions relating to the Plan and Option Agreement which are not governed by
the Employment Agreement. The Optionee further agrees to notify the Company upon
any change in the residence address indicated below.
The Company and the Optionee recognize that the Plan has been
prepared both in the French and the English language. The French version is the
version that binds the parties, notwithstanding this, the English version
represents an acceptable translation and, consequently, no official translation
will be required for the interpretation of this agreement.
OPTIONEE: ILOG S.A.
- ------------------------------- --------------------------------------
Signature By:
Print Name
- -------------------------------
Residence Address
- -------------------------------
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<PAGE> 128
ILOG S. A.
1996 STOCK OPTION GRANT AGREEMENT
PART II
TERMS AND CONDITIONS
1. Grant of Option. The Plan Administrator of the Company hereby grants
to the Optionee named in the Notice of Grant attached as Part I of this
Agreement (the "Optionee"), an option (the "Option") to subscribe the number of
Shares, as set forth in the Notice of Grant, at the exercise price per Share set
forth in the Notice of Grant (the "Exercise Price"), subject to the terms and
conditions of the 1996 Stock Option Plan, as amended, which is incorporated
herein by reference. In the event of a conflict between the terms and conditions
of the Plan and the terms and conditions of this Option Agreement, the terms and
conditions of the Plan shall prevail.
If designated in the Notice of Grant as an Incentive Stock
Option, this Option is intended to qualify as an Incentive Stock Option under
Section 422 of the Code. However, if this Option is intended to be an Incentive
Stock Option, to the extent that it exceeds the $100,000 rule of Code Section
422(d) it shall be treated as a Non-statutory Stock Option.
2. Exercise of Option.
(a) Right to Exercise. This Option is exercisable during its term in
accordance with the Vesting Schedule set out in the Notice of Grant and the
applicable provisions of the Plan and this Option Agreement. In the event of
Optionee's death, disability or other termination of Optionee's employment or
term of office, the exercisability of the Option is governed by the applicable
provisions of the Plan and this Option Agreement.
(b) Method of Exercise. This Option is exercisable by delivery of an
exercise notice, in the form attached hereto (the "Exercise Notice"), comprising
a share subscription form (bulletin de souscription) which shall state the
election to exercise the Option, the number of Shares in respect of which the
Option is being exercised (the "Exercised Shares"), and such other
representations and agreements as may be required by the Company pursuant to the
provisions of the Plan. The Exercise Notice shall be signed by the Optionee and
shall be delivered in person or by certified mail to the Company or its
designated representative or by facsimile message to be immediately confirmed by
certified mail to the Company. The Exercise Notice shall be accompanied by
payment of the aggregate Exercise Price as to all Exercised Shares. This Option
shall be deemed to be exercised upon receipt by the Company of such fully
executed Exercise Notice accompanied by such aggregate Exercise Price.
<PAGE> 129
No Shares shall be issued pursuant to the exercise of this
Option unless such issuance and exercise complies with all relevant provisions
of law as set out under Section 14(a) of the Plan.
Upon the issuance of the Shares, the Optionee shall be
entitled to receive such Shares in the form of American Depositary Shares by
completing and signing the appropriate box of the Exercise Notice attached
hereto.
3. Method of Payment. Payment of the aggregate Exercise Price shall be
by any of the following, or a combination thereof, at the election of the
Optionee:
(1) wire transfer;
(2) check;
(3) delivery of a properly executed notice together with
such other documentation as the Administrator and the broker,
if applicable, shall require to effect exercise of the Option
and delivery to the Company of the sale or loan proceeds
required to pay the exercise price; or
(4) any combination of the foregoing methods of payment.
4. Non-Transferability of Option. This Option may not be transferred in
any manner otherwise than by will or by the laws of descent or distribution and
may be exercised during the lifetime of the Optionee only by the Optionee. The
terms of the Plan and this Option Agreement shall be binding upon the executors,
administrators, heirs, successors and assigns of the Optionee.
5. Terms of Option. Subject as provided in the Plan, this Option may be
exercised only within the term set out in the Notice of Grant, and may be
exercised during such term only in accordance with the Plan and the terms of
this Option Agreement.
6. Entire Agreement; Governing Law. The Plan is incorporated herein by
reference. The Plan, this Option Agreement and the Employment Agreement
constitute the entire agreement of the parties with respect to the subject
matter hereof and supersede in their entirety all prior undertakings and
agreements of the Company and Optionee with respect to the subject matter
hereof, and may not be modified adversely to the Optionee's interest except by
means of a writing signed by the Company and Optionee. In the event of any
conflict between the provisions of this Option Agreement and the provisions of
the Employment Agreement, the Employment Agreement shall, to the extent of such
conflict, control. This Option Agreement is governed by the laws of the Republic
of France.
Any claim or dispute arising under the Plan or this Agreement shall be subject
to the exclusive jurisdiction of the Tribunal de Grande Instance of Creteil.
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<PAGE> 130
CONSENT OF SPOUSE
(TO BE SIGNED BY RESIDENT OF CALIFORNIA AND OTHER COMMUNITY PROPERTY STATES)
The undersigned spouse of Optionee has read and hereby
approves the terms and conditions of the Plan and this Option Agreement. In
consideration of the Company's granting his or her spouse the right to subscribe
Shares as set forth in the Plan and this Option Agreement, the undersigned
hereby agrees to be irrevocably bound by the terms and conditions of the Plan
and this Option Agreement and further agrees that any community property
interest shall be similarly bound. The undersigned hereby appoints the
undersigned's spouse as attorney-in-fact for the undersigned with respect to any
amendment or exercise of rights under the Plan or this Option Agreement.
---------------------------------------
Spouse of Optionee
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<PAGE> 131
EXHIBIT A
ILOG S.A.
SOCIETE ANONYME HAVING A SHARE CAPITAL OF 24,798,780 FRANCS
REGISTERED OFFICE: []
1996 STOCK OPTION PLAN
EXERCISE NOTICE
(SHARE SUBSCRIPTION FORM)
ILOG S.A.
[ ]
Date:
Attention:
1. Exercise of Option. Effective as of today, , 199__,
the undersigned hereby elects to subscribe (_____________ )
shares (the "Shares") of the Common Stock of ILOG S.A. (the "Company") under and
pursuant to the Company's 1996 Stock Option Plan (the "Plan") adopted by the
Board of Directors on May 30, 1996, as amended and the Stock Option Agreement
dated _________________, 199_, (the "Option Agreement"). The subscription
price for the Shares shall be FF ____________ , as required by the Option
Agreement.
2. Delivery of Payment. Purchaser herewith delivers to the Company the
full subscription price for the Shares.
3. Representation of Optionee. The Optionee acknowledges that Optionee
has received, read and understood the Plan and the Option Agreement and agrees
to abide by and be bound by their terms and conditions.
4. Rights as Shareholder. Until the issuance (as evidenced by the
appropriate entry on the books of the Company) of the Shares, the Optionee shall
have, as an Optionee, no right to vote or receive dividends or any other rights
as a shareholder shall exist with respect to the Optioned Stock, except those
the Optionee may have as a shareholder of the Company. No adjustment will be
made
<PAGE> 132
for rights in respect of which the record date is prior to the issuance date for
the Shares, except as provided in Section 11 of the Plan.
5. Tax Consultation. The Optionee understands that Optionee may suffer
adverse tax consequences as a result of Optionee's subscription or disposition
of the Shares. Optionee represents that Optionee has consulted with any tax
consultants Optionee deems advisable in connection with the subscription or
disposition of the Shares. The Optionee is not relying on the Company for any
tax advice.
6. Entire Agreement; Governing Law. The Plan and Option Agreement are
incorporated herein by reference. Reference is made to that certain Employment
Agreement by and between Optionee and ILOG, Inc. dated as of August __, 1997
(the "Employment Agreement"). This Exercise Notice, the Plan the Option
Agreement and the Employment Agreement constitute the entire agreement of the
parties with respect to the subject matter hereof and supersede in their
entirety all prior undertakings and agreements of the Company and Optionee with
respect to the subject matter hereof, and may not be modified adversely to the
Optionee's interest except by means of a writing signed by the Company and
Purchaser. In the event of any conflict between the provisions of this Exercise
Notice and the provisions of the Employment Agreement, the Employment Agreement
shall, to the extent of such conflict, control. This Exercise Notice is governed
by the laws of the Republic of France.
This Exercise Notice is delivered in two originals, one of which shall be
returned to the Optionee.
Submitted by: Accepted by:
OPTIONEE(*) ILOG S.A.
- -------------------------------------------
Signature by:
- ------------------------------------------- Its: CEO
Print Name
ADDRESS: ADDRESS:
- ------------------------------------------- ILOG S.A.
- ---------------------------
(*) The signature of the Optionee must be preceded by the following
manuscript mention "accepted for formal and irrevocable subscription of
________________ Shares."
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<PAGE> 133
Exhibit C
(Form of Confidential Information and Invention Assignment Agreement)
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<PAGE> 134
ILOG, INC.
CONFIDENTIAL INFORMATION AND
INVENTION ASSIGNMENT AGREEMENT
As a condition of my employment with ILOG, INC., its subsidiaries,
affiliates, successors or assigns (together the "COMPANY"), and in consideration
of my employment with the Company and my receipt of the compensation now and
hereafter paid to me by Company, I agree to the following:
1. CONFIDENTIAL INFORMATION.
(a) COMPANY INFORMATION. I agree at all times during the term
of my employment and thereafter, to hold in strictest confidence, and not to
use, except for the benefit of the Company, or to disclose to any person, firm
or corporation without written authorization of the Company, any Confidential
Information of the Company. I understand that "CONFIDENTIAL INFORMATION" means
any Company proprietary information, technical data, trade secrets or know-how,
including, but not limited to, research, product plans, products, services,
customer lists and customers (including, but not limited to, customers of the
Company on whom I called or with whom I became acquainted during the term of my
employment), markets, software, developments, inventions, processes, formulas,
technology, designs, drawings, engineering, hardware configuration information,
marketing, finances or other business information disclosed to me by the Company
either directly or indirectly in writing, orally or by drawings or observation
of parts or equipment. I further understand that Confidential Information does
not include any of the foregoing items which has become publicly known and made
generally available through no wrongful act of mine or of others who were under
confidentiality obligations as to the item or items involved.
(b) FORMER EMPLOYER INFORMATION. I agree that I will not,
during my employment with the Company, improperly use or disclose any
proprietary information or trade secrets of any former or concurrent employer or
other person or entity and that I will not bring onto the premises of the
Company any unpublished document or proprietary information belonging to any
such employer, person or entity unless consented to in writing by such employer,
person or entity.
(c) THIRD PARTY INFORMATION. I recognize that the Company has
received and in the future will receive from third parties their confidential or
proprietary information subject to a duty on the Company's part to maintain the
confidentiality of such information and to use it only for certain limited
purposes. I agree to hold all such confidential or proprietary information in
the strictest confidence and not to disclose it to any person, firm or
corporation or to use it except as necessary in carrying out my work for the
Company consistent with the Company's agreement with such third party.
2. INVENTIONS.
(a) INVENTIONS RETAINED AND LICENSED. I have attached hereto,
as Exhibit A, a list describing all inventions, original works of authorship,
developments, improvements, and trade secrets which were made by me prior to my
employment with CPLEX or the Company (collectively referred to as "PRIOR
INVENTIONS"), which belong to me, which relate to the Company's proposed
business, products
<PAGE> 135
or research and development, and which are not assigned to the Company
hereunder; or, if no such list is attached, I represent that there are no such
Prior Inventions. If in the course of my employment with the Company, I
incorporate into a Company product, process or machine a Prior Invention owned
by me or in which I have an interest, the Company is hereby granted and shall
have a nonexclusive, royalty-free, irrevocable, perpetual, worldwide license to
make, have made, modify, use and sell such Prior Invention as part of or in
connection with such product, process or machine.
(b) ASSIGNMENT OF INVENTIONS. I agree that I will promptly
make full written disclosure to the Company, will hold in trust for the sole
right and benefit of the Company, and hereby assign to the Company, or its
designee, all my right, title, and interest in and to any and all inventions,
original works of authorship, developments, concepts, improvements or trade
secrets, whether or not patentable or registrable under copyright or similar
laws, which I may solely or jointly conceive or develop or reduce to practice,
or cause to be conceived or developed or reduced to practice, during the period
of time I am in the employ of the Company (collectively referred to as
"INVENTIONS"), except as provided in Section 2(e) below. I further acknowledge
that, except as provided in Section 2(e) below, all original works of authorship
which are made by me (solely or jointly with others) within the scope of and
during the period of my employment with the Company and which are protectible by
copyright are "works made for hire," as that term is defined in the United
States Copyright Act.
(c) MAINTENANCE OF RECORDS. I agree to keep and maintain
adequate and current written records of all Inventions made by me (solely or
jointly with others) during the term of my employment with the Company. The
records will be in the form of notes, sketches, drawings, and any other format
that may be specified by the Company. The records will be available to and
remain the sole property of the Company at all times.
(d) PATENT AND COPYRIGHT REGISTRATIONS. I agree to assist the
Company, or its designee, at the Company's expense, in every proper way to
secure the Company's rights in the Inventions and any copyrights, patents, mask
work rights or other intellectual property rights relating thereto in any and
all countries, including the disclosure to the Company of all pertinent
information and data with respect thereto, the execution of all applications,
specifications, oaths, assignments and all other instruments which the Company
shall deem necessary in order to apply for and obtain such rights and in order
to assign and convey to the Company, its successors, assigns, and nominees the
sole and exclusive rights, title and interest in and to such Inventions, and any
copyrights, patents, mask work rights or other intellectual property rights
relating thereto. I further agree that my obligation to execute or cause to be
executed, when it is in my power to do so, any such instrument or papers shall
continue after the termination of this Agreement. If the Company is unable
because of my mental or physical incapacity or for any other reason to secure my
signature to apply for or to pursue any application for any United States or
foreign patents or copyright registrations covering Inventions or original works
of authorship assigned to the Company as above, then I hereby irrevocably
designate and appoint the Company and its duly authorized officers and agents as
my agent and attorney in fact, to act for and in my behalf and stead to execute
and file any such applications and to do all other lawfully permitted acts to
further the prosecution and issuance of letters patent or copyright
registrations thereon with the same legal force and effect as if executed by me.
2
<PAGE> 136
(e) EXCEPTION TO ASSIGNMENTS. I understand that the provisions
of this Agreement requiring assignment of Inventions to the Company do not apply
to any invention which qualifies fully under the provisions of California Labor
Code Section 2870 (attached hereto as Exhibit A).
3. CONFLICTING EMPLOYMENT. I agree that, during the term of my
employment with the Company, I will not engage in any other employment,
occupation, consulting or other business activity directly related to the
business in which the Company is now involved or becomes involved during the
term of my employment, nor will I engage in any other activities that conflict
with my obligations to the Company provided, however, that the Company
recognizes and agrees to my continued academic association and activities with
respect to Rice University.
4. RETURNING COMPANY DOCUMENTS. I agree that, at the time of leaving
the employ of the Company, I will deliver to the Company (and will not keep in
my possession, recreate or deliver to anyone else) any and all devices, records,
data, notes, reports, proposals, lists, correspondence, specifications, drawings
blueprints, sketches, materials, equipment, other documents or property, or
reproductions of any aforementioned items developed by me pursuant to my
employment with the Company or otherwise belonging to the Company, its
successors or assigns. In the event of the termination of my employment, I agree
to sign and deliver the "Termination Certification" attached hereto as Exhibit
B.
5. NOTIFICATION OF NEW EMPLOYER. In the event that I leave the employ
of the Company, I hereby grant consent to notification by the Company to my new
employer about my rights and obligations under this Agreement.
6. REPRESENTATIONS. I agree to execute any proper oath or verify any
proper document required to carry out the terms of this Agreement. I represent
that my performance of all the terms of this Agreement will not breach any
agreement to keep in confidence proprietary information acquired by me in
confidence or in trust prior to my employment by the Company. I have not entered
into, and I agree I will not enter into, any oral or written agreement in
conflict herewith.
7. ARBITRATION AND EQUITABLE RELIEF.
(a) ARBITRATION. Except as provided in Section 8(b) below, I
agree that any dispute or controversy arising out of or relating to any
interpretation, construction, performance or breach of this Agreement, shall be
settled by arbitration to be held in Santa Clara County, California, in
accordance with the rules then in effect of the American Arbitration
Association. The arbitrator may grant injunctions or other relief in such
dispute or controversy. The decision of the arbitrator shall be final,
conclusive and binding on the parties to the arbitration. Judgment may be
entered on the arbitrator's decision in any court having jurisdiction. The
Company and I shall each pay one-half of the costs and expenses of such
arbitration, and each of us shall separately pay our counsel fees and expenses.
(b) EQUITABLE REMEDIES. I agree that it would be impossible or
inadequate to measure and calculate the Company's damages from any breach of the
covenants set forth in Sections 1, 2, and 4 herein. Accordingly, I agree that if
I breach any of such Sections, the Company will have available, in addition to
any other right or remedy available, the right to obtain an injunction from a
court of competent jurisdiction restraining such breach or threatened breach and
to specific performance of any such provision of this Agreement.
3
<PAGE> 137
8. GENERAL PROVISIONS.
(a) GOVERNING LAW; CONSENT TO PERSONAL JURISDICTION. This
Agreement will be governed by the laws of the State of California. I hereby
expressly consent to the personal jurisdiction of the state and federal courts
located in California for any lawsuit filed there against me by the Company
arising from or relating to this Agreement.
(b) ENTIRE AGREEMENT. This Agreement sets forth the entire
agreement and understanding between the Company and me relating to the subject
matter herein and merges all prior discussions between us. No modification of or
amendment to this Agreement, nor any waiver of any rights under this agreement,
will be effective unless in writing signed by the party to be charged. Any
subsequent change or changes in my duties, salary or compensation will not
affect the validity or scope of this Agreement.
(c) SEVERABILITY. If one or more of the provisions in this
Agreement are deemed void by law, then the remaining provisions will continue in
full force and effect.
(d) SUCCESSORS AND ASSIGNS. This Agreement will be binding
upon my heirs, executors, administrators and other legal representatives and
will be for the benefit of the Company, its successors, and its assigns.
Date: August 20, 1997
-----------------------------------
Signature
Employee
- ------------------------
Witness
4
<PAGE> 138
EXHIBIT A
CALIFORNIA LABOR CODE SECTION 2870
EMPLOYMENT AGREEMENTS; ASSIGNMENT OF RIGHTS
"(a) Any provision in an employment agreement which provides that an
employee shall assign, or offer to assign, any of his or her rights in an
invention to his or her employer shall not apply to an invention that the
employee developed entirely on his or her own time without using the employer's
equipment, supplies, facilities, or trade secret information except for those
inventions that either:
(1) Relate at the time of conception or reduction to practice
of the invention to the employer's business, or actual or demonstrably
anticipated research or development of the employer.
(2) Result from any work performed by the employee for the
employer.
(b) To the extent a provision in an employment agreement purports to
require an employee to assign an invention otherwise excluded from being
required to be assigned under subdivision (a), the provision is against the
public policy of this state and is unenforceable."
5
<PAGE> 139
EXHIBIT B
ILOG, INC.
TERMINATION CERTIFICATION
This is to certify that I do not have in my possession, nor have I
failed to return, any devices, records, data, notes, reports, proposals, lists,
correspondence, specifications, drawings, blueprints, sketches, materials,
equipment, other documents or property, or reproductions of any aforementioned
items belonging to ILOG, Inc., its subsidiaries, affiliates, successors or
assigns (together, the "COMPANY").
I further certify that I have complied with all the terms of the
Company's Confidential Information and Invention Assignment Agreement signed by
me, including the reporting of any inventions and original works of authorship
(as defined therein), conceived or made by me (solely or jointly with others)
covered by that agreement.
I further agree that, in compliance with the Confidential Information
and Invention Assignment Agreement, I will preserve as confidential all trade
secrets, confidential knowledge, data or other proprietary information relating
to products, processes, know-how, designs, formulas, developmental or
experimental work, computer programs, data bases, other original works of
authorship, customer lists, business plans, financial information or other
subject matter pertaining to any business of the Company or any of its
employees, clients, consultants or licensees.
I further agree that for twelve (12) months from this date, I will not
hire any employees of the Company and I will not solicit, induce, recruit or
encourage any of the Company's employees to leave their employment.
Date: August 20, 1997
-----------------------------------
(Employee's Signature)
Janet Lowe
-----------------------------------
(Type/Print Employee's Name)
6
<PAGE> 140
EXHIBIT E(iii)
EMPLOYMENT AGREEMENT FOR ROBERT BIXBY
<PAGE> 141
EXHIBIT E(iii)
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "AGREEMENT"), dated as of the _____ day
of August, 1997 the ("EFFECTIVE DATE"), by and between ILOG, Inc., a California
corporation (the "COMPANY") and the undersigned employee ("EMPLOYEE") of
Company.
AGREEMENT
NOW, THEREFORE, IT IS HEREBY AGREED by and among the parties hereto as
follows:
1. EMPLOYMENT BY COMPANY; DUTIES.
(a) Employment. Subject to the terms and conditions set forth
herein, the Company hereby agrees to employ Employee in the position of
Strategic Marketing Director, having all the duties and responsibilities
customarily associated with such positions, subject to modification from time to
time by the Company, and Employee hereby accepts such employment by the Company.
Employee's duties shall initially include the strategic market planning for
CPLEX-related products, and Employee shall report to the Company's Executive
Vice President, CPLEX Business. With respect to any modifications of Employee's
position and/or duties during the term of Employee's employment hereunder, the
Company shall give due consideration to Employee's skills and experience in
determining the appropriate position and duties of Employee and shall not,
without Employee's consent, modify Employee's position or duties in a manner
inconsistent with Employee's status as a director-level employee of the Company;
provided, however, that the foregoing shall in no way limit the ability of the
Company to terminate Employee's employment at any time for any reason or for no
reason. Such employment shall commence on the Effective Date and shall continue
until terminated as provided in Paragraph 3 hereof. Employee shall not, without
the prior written consent of Company, directly or indirectly, alone or as part
of any group, association or organization, be actively engaged in or concerned
with any other duties or pursuits which interfere with the performance of
Employee's duties to Company or which may be contrary to the best interests of
the Company.
(b) Company Policies. The employment relationship between the
parties shall also be governed by the general employment policies and practices
of the Company now in effect or which may become effective in the future,
including those relating to the protection of confidential information and trade
secrets, except that when the terms of this Agreement differ from or are in
conflict with the Company's general employment policies or practices, this
Agreement shall control.
<PAGE> 142
2. COMPENSATION AND BENEFITS.
(a) Base Salary; Bonuses; Compensation for Part-Time
Employment. As compensation for the services to be rendered by Employee during
his Full-Time Employment hereunder, including all services rendered to entities
affiliated with the Company, the Company agrees to pay Employee in accordance
with the Company's regular payroll practices, direct salary compensation at the
rate of $135,000 per year (as adjusted from time to time pursuant to the terms
hereof, the "BASE SALARY"), commencing on the Effective Date. In addition,
Employee shall be eligible to receive a performance bonus in a target amount
which is commensurate with that of similarly situated employees, with the
actual bonus to be determined based on the achievement of performance criteria
to be determined by mutual agreement of the Company and Employee (as adjusted
from time to time pursuant to the terms hereof, the "BONUS"). For purposes of
this Agreement, "FULL-TIME EMPLOYMENT" shall mean all periods of time during
which Employee is devoting all of Employee's working time, attention and
energies to performing Employee's duties to the Company. In the event Employee
desires to reduce the level of Employee's time, attention or energies devoted to
the Company to below Full-Time Employment levels, Employee shall give the
Company sixty day's written notice of such request and the Company shall not
unreasonably deny such request. Such notice shall quantify Employee's desired
level of time, attention and energies to be devoted to the Company and the
effective date of such reduction (any such periods of time during which such
reduction are in effect, "PART-TIME EMPLOYMENT"). Employee may, subject to the
consent of the Company which consent shall not be unreasonably withheld, request
to resume Full-Time Employment or further adjust the level of Employee's
Part-Time Employment upon sixty day's notice. During any period of Part-Time
Employment, Employee's Base Salary and Bonus shall be proportionately adjusted
by the Company in good faith. Such good-faith adjustments by the Company shall
be conclusive and binding on Employee.
(b) Employee Benefits. Employee shall be eligible to
participate in the employee benefit plans and arrangements which are available
or which become available, in the discretion of the Company's Board of
Directors, to other employees of the Company, subject in each case to the
generally applicable terms and conditions of the plan or arrangement in question
and to the determination of any committee administering such plan or
arrangement. The Company's presently available benefits are listed on Exhibit A
hereto. Employee's benefits shall not be reduced during periods of Part-Time
Employment, except that benefits that are based on levels of salary and bonus
compensation, such as moneys paid during periods of paid vacation, shall be
proportionately adjusted by the Company in good faith.
(c) Annual Compensation Review. Employee and the Company shall
review Employee's Base Salary and Bonus structure annually and may make mutually
agreeable adjustments at such times.
3. TERM AND TERMINATION.
(a) Term; Effect of Termination. Unless terminated by either
party as provided below, this Agreement shall remain in full force and effect
until the date three years after the Effective Date (such three year period, the
"DEFAULT TERM") and may be extended for one annual term upon the mutual
agreement of Employee and the Company (any such extension period, the
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<PAGE> 143
"EXTENDED TERM"). Provisions of this Agreement that expressly relate to periods
of time following the term of this Agreement or of Employee's employment shall
survive any termination or expiration of this Agreement or of Employee's
employment with the Company.
(b) Limitation of Liability upon Termination. If Employee's
employment terminates (or is terminated) for any reason (or for no reason),
Employee shall not be entitled to any payments, benefits, damages, awards or
compensation other than as provided in this Agreement, or as may otherwise be
available in accordance with the Company's established employee plans and
policies at the time of termination. Subject to the terms and conditions hereof,
Employee acknowledges that Employee's employment hereunder shall be on an
at-will basis and that Company may terminate Employee's employment hereunder at
any time with or without Cause.
(c) Termination for Cause; Definition of "Cause". Employee's
employment with the Company may be terminated for Cause at any time by the
Company, upon reasonable notice to Employee of the circumstances leading to such
termination for Cause. For the purpose of this Agreement, "CAUSE" shall mean (i)
the substantial and continuing failure to render services to the Company or its
affiliated entities in accordance with Employee's assigned duties (other than as
a result of Employee's Disability, as defined below, or other medically
determinable serious physical impairment), as determined by the Board of
Directors of the Company's parent entity, if such failure remains uncured for a
period of 30 days following delivery of notice to Employee of such failure; (ii)
the conviction of a felony; (iii) gross negligence, dishonesty, breach of
fiduciary duty or material breach of the terms of any confidentiality,
noncompetition or other agreement in favor of the Company or its affiliated
entities; (iv) the commission of an act of fraud or embezzlement which results
in loss, damage or injury to the Company or its affiliated entities, whether
directly or indirectly; or (v) the commission of an act which constitutes unfair
competition with the Company or its affiliated entities or which induces any
customer of the Company or its affiliated entities to break a contract with the
Company or its affiliated entities.
(d) Continuation of Option Vesting upon Certain Events. In
connection with the commencement of Employee's employment with the Company,
Employee has been or will be granted an option to purchase up to 400,000 shares
of ILOG S.A. under its 1996 Stock Option Plan pursuant to an option agreement in
substantially the form attached hereto as Exhibit B (the "OPTION"). Upon
termination of Employee's employment for any reason, Employee shall have the
right to exercise, within 90 days of such termination, the portion of Employee's
Option that is then-exercisable pursuant to the terms and conditions of such
option agreement and such option plan; provided, however, that, notwithstanding
any term of such option agreement or such option plan to the contrary, if at any
time prior to such time as the Option becomes fully vested and exercisable,
either (X) the Company terminates Employee's employment with the Company without
Employee's consent other than for Cause or (Y) Employee dies or becomes Disabled
(as defined below) then, in each case, Employee's Option shall (i) continue to
vest until fully vested and (ii) continue to be exercisable to the extent
vested, in each case, as if Employee had remained alive, not Disabled and
employed by the Company throughout the term of the Option.
(e) Continuation of Salary, Bonus and Benefits upon
Termination without Cause. If the Company terminates Employee's employment with
the Company during the Default Term
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<PAGE> 144
without Employee's consent other than for Cause, then, during the remaining
Default Term, the Company shall continue to pay Employee the annual Base Salary
and target Bonus in effect immediately prior to such termination and shall
continue to provide Employee with benefits substantially equivalent to those
being provided immediately prior to such termination.
(f) Definitions of Disability and Disabled. For purposes of
this Agreement, the terms "Disabled" and "Disability" shall refer to a state of
Employee's "permanent and total disability" as such term is defined in Section
22(e)(3) of the Internal Revenue Code of 1986, as amended.
4. PROPRIETARY INFORMATION; NONINTERFERENCE. As a condition to the
effectiveness of this Agreement, Employee shall execute the Proprietary
Information and Invention Assignment Agreement attached hereto as Exhibit C.
5. MISCELLANEOUS.
(a) Notices. Any notice required or permitted hereunder shall
be given in writing and shall be deemed effectively given upon personal delivery
or upon the third day after deposit with the United States Post Office, by
registered or certified mail, postage prepaid, return receipt requested,
addressed to the Company or Employee at the addresses set forth on the signature
page of this Agreement, or at such other address as such party may designate by
ten (10) days advance written notice to the other party.
(b) Severability. Nothing in this Agreement shall be construed
so as to require the commission of any act contrary to law and wherever there is
any conflict between any provision of this Agreement and any law, statute,
ordinance, order or regulation, the latter shall prevail, but in such event any
provision of this Agreement shall be curtailed and limited only to the extent
necessary to bring it within applicable legal requirements. If any provision of
this Agreement should be held invalid or unenforceable, the remaining provisions
shall be unaffected by such a holding.
(c) Tax Matters. Employee has consulted Employee's own
independent tax and legal advisors with respect to the transactions contemplated
by this Agreement and is not relying in any respect on the Company or any
officer, employee, or other agent or representative of the Company to provide
any advice with respect to the federal, state, local or foreign tax consequences
of the transactions contemplated hereby. Employee alone will bear Employee's tax
consequences, if any, associated with the transactions contemplated hereby and
will not seek any reimbursement in connection with any such tax consequences
from the Company.
(d) Complete Agreement. This Agreement and the exhibits
attached hereto contain the entire agreement and understanding between the
parties relating to the subject matter hereof, and supersedes any prior
understandings, agreements, or representations by or between the parties,
written or oral, relating to the subject matter hereof.
(e) Successors and Assigns. This Agreement and the rights and
obligations of the parties hereto shall bind and inure to the benefit of any
successor or successors of the Company by
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<PAGE> 145
way of reorganization, merger or consolidation and any assignee of all or
substantially all of its business and assets, but except as to any such
successor or assignee of the Company, neither this Agreement nor any rights or
benefits hereunder may be assigned by the Company or Employee.
(f) Amendments. Notwithstanding anything to the contrary
contained in this Agreement, the parties to this Agreement may make any
modification or amendment to this Agreement only by a mutual agreement in
writing.
(g) Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of California as such laws
are applied to contracts entered into and to be performed entirely within the
State of California.
IN WITNESS WHEREOF, the parties have executed and delivered this
Agreement on the day and year first above written.
ILOG, INC.
By:
-----------------------------------
EMPLOYEE
--------------------------------------
(Signature)
Robert Bixby
--------------------------------------
(Print Name)
--------------------------------------
--------------------------------------
(Print Address)
--------------------------------------
(Print Telephone Number)
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<PAGE> 146
Exhibit A
While Employee remains employed with the Company, Employee shall be eligible for
all benefits offered to Company employees generally, currently including Aetna
Medical HMO/PPO coverage, dental and vision insurance plans, Accidental Death &
Disability Insurance, Section 125 pre-tax medical and dependent care expense
reimbursement plan, and 401(k) plan. In addition, Employee shall be entitled to
paid vacation during each year of employment of the greater of (i) four weeks or
(ii) the then-current annual paid vacation allowed by the Company's standard
benefit policy (currently three weeks).
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<PAGE> 147
Exhibit B
(Form of Option Agreement is Attached)
-7-
<PAGE> 148
ILOG S.A.
1996 STOCK OPTION GRANT AGREEMENT
PART I
NOTICE OF STOCK OPTION GRANT
Mr. Robert Bixby
You have been granted an Option to subscribe Shares of the
Company, subject to the terms and conditions of the 1996 Stock Option Plan, as
amended (the "Plan"), and this Option Agreement. Unless otherwise defined
herein, the terms defined in the Plan shall have the same defined meanings in
this Option Agreement.
Grant Number: SO96/97/
Date of Grant: August 20, 1997
Vesting Commencement Date: August 20, 1997
Vesting period: Four years
Share Per Value: FF 4.00
Exercise Price per Share: FF 36.84
Total Number of Shares Granted: 400,000
Total Exercise Price: FF 14,376,000
Type of Option: Incentive Stock Option
Term/Expiration Date: Ten Years
<PAGE> 149
VESTING SCHEDULE:
This Option may be exercised, in whole or in part, in
accordance with the following schedule:
25% of the Shares subject to the Option shall vest twelve
months after the Vesting Commencement Date, and 1/48 of the Shares subject to
the Option shall vest each month thereafter.
Except as may be provided in that certain Employment Agreement
by and between Optionee and ILOG, Inc. dated as of August 20, 1997 (the
"Employment Agreement"), vesting shall continue only during Optionee's
Continuous Status as a Beneficiary.
TERMINATION PERIOD:
Except as provided in the Employment Agreement, this Option
may be exercised for ninety (90) days after termination of the Optionee's
employment or term of office with the Company or an Affiliated Company as the
case may be. Upon the Death or Disability of the Optionee, this Option may be
exercised for such longer period as provided in the Plan or the Employment
Agreement. Save as provided in the Plan, in no event shall this Option be
exercised later than the Term/Expiration Date as provided above.
By his signature and the signature of the Company's
representative below, the Optionee and the Company agree that this Option is
granted under and, except to the extent inconsistent with the Employment
Agreement, governed by the terms and conditions of the Plan and this Option
Agreement. The Optionee has reviewed the Plan and this Option Agreement in their
entirety, has had the opportunity to obtain advice of counsel prior to executing
this Option Agreement and fully understands all provisions of the Plan and
Option Agreement. The Optionee hereby agrees to accept as binding, conclusive
and final all decisions or interpretations of the Administrator upon any
questions relating to the Plan and Option Agreement which are not governed by
the Employment Agreement. The Optionee further agrees to notify the Company upon
any change in the residence address indicated below.
The Company and the Optionee recognize that the Plan has been
prepared both in the French and the English language. The French version is the
version that binds the parties, notwithstanding this, the English version
represents an acceptable translation and, consequently, no official translation
will be required for the interpretation of this agreement.
OPTIONEE: ILOG S.A.
____________________________________ _____________________________
Signature By:
Print Name
____________________________________
Residence Address
____________________________________
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<PAGE> 150
ILOG S. A.
1996 STOCK OPTION GRANT AGREEMENT
PART II
TERMS AND CONDITIONS
1. Grant of Option. The Plan Administrator of the Company hereby grants
to the Optionee named in the Notice of Grant attached as Part I of this
Agreement (the "Optionee"), an option (the "Option") to subscribe the number of
Shares, as set forth in the Notice of Grant, at the exercise price per Share set
forth in the Notice of Grant (the "Exercise Price"), subject to the terms and
conditions of the 1996 Stock Option Plan, as amended, which is incorporated
herein by reference. In the event of a conflict between the terms and conditions
of the Plan and the terms and conditions of this Option Agreement, the terms and
conditions of the Plan shall prevail.
If designated in the Notice of Grant as an Incentive Stock
Option, this Option is intended to qualify as an Incentive Stock Option under
Section 422 of the Code. However, if this Option is intended to be an Incentive
Stock Option, to the extent that it exceeds the $100,000 rule of Code Section
422(d) it shall be treated as a Non-statutory Stock Option.
2. Exercise of Option.
(a) Right to Exercise. This Option is exercisable during its term in
accordance with the Vesting Schedule set out in the Notice of Grant and the
applicable provisions of the Plan and this Option Agreement. In the event of
Optionee's death, disability or other termination of Optionee's employment or
term of office, the exercisability of the Option is governed by the applicable
provisions of the Plan and this Option Agreement.
(b) Method of Exercise. This Option is exercisable by delivery of an
exercise notice, in the form attached hereto (the "Exercise Notice"), comprising
a share subscription form (bulletin de souscription) which shall state the
election to exercise the Option, the number of Shares in respect of which the
Option is being exercised (the "Exercised Shares"), and such other
representations and agreements as may be required by the Company pursuant to the
provisions of the Plan. The Exercise Notice shall be signed by the Optionee and
shall be delivered in person or by certified mail to the Company or its
designated representative or by facsimile message to be immediately confirmed by
certified mail to the Company. The Exercise Notice shall be accompanied by
payment of the aggregate Exercise Price as to all Exercised Shares. This Option
shall be deemed to be exercised upon receipt by the Company of such fully
executed Exercise Notice accompanied by such aggregate Exercise Price.
<PAGE> 151
No Shares shall be issued pursuant to the exercise of this
Option unless such issuance and exercise complies with all relevant provisions
of law as set out under Section 14(a) of the Plan.
Upon the issuance of the Shares, the Optionee shall be
entitled to receive such Shares in the form of American Depositary Shares by
completing and signing the appropriate box of the Exercise Notice attached
hereto.
3. Method of Payment. Payment of the aggregate Exercise Price shall be
by any of the following, or a combination thereof, at the election of the
Optionee:
(1) wire transfer;
(2) check;
(3) delivery of a properly executed notice together with such
other documentation as the Administrator and the broker, if
applicable, shall require to effect exercise of the Option and
delivery to the Company of the sale or loan proceeds required
to pay the exercise price; or
(4) any combination of the foregoing methods of payment.
4. Non-Transferability of Option. This Option may not be transferred in
any manner otherwise than by will or by the laws of descent or distribution and
may be exercised during the lifetime of the Optionee only by the Optionee. The
terms of the Plan and this Option Agreement shall be binding upon the executors,
administrators, heirs, successors and assigns of the Optionee.
5. Terms of Option. Subject as provided in the Plan, this Option may be
exercised only within the term set out in the Notice of Grant, and may be
exercised during such term only in accordance with the Plan and the terms of
this Option Agreement.
6. Entire Agreement; Governing Law. The Plan is incorporated herein by
reference. The Plan, this Option Agreement and the Employment Agreement
constitute the entire agreement of the parties with respect to the subject
matter hereof and supersede in their entirety all prior undertakings and
agreements of the Company and Optionee with respect to the subject matter
hereof, and may not be modified adversely to the Optionee's interest except by
means of a writing signed by the Company and Optionee. In the event of any
conflict between the provisions of this Option Agreement and the provisions of
the Employment Agreement, the Employment Agreement shall, to the extent of such
conflict, control. This Option Agreement is governed by the laws of the Republic
of France.
Any claim or dispute arising under the Plan or this Agreement shall be subject
to the exclusive jurisdiction of the Tribunal de Grande Instance of Creteil.
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<PAGE> 152
CONSENT OF SPOUSE
(TO BE SIGNED BY RESIDENT OF CALIFORNIA AND
OTHER COMMUNITY PROPERTY STATES)
The undersigned spouse of Optionee has read and hereby
approves the terms and conditions of the Plan and this Option Agreement. In
consideration of the Company's granting his or her spouse the right to subscribe
Shares as set forth in the Plan and this Option Agreement, the undersigned
hereby agrees to be irrevocably bound by the terms and conditions of the Plan
and this Option Agreement and further agrees that any community property
interest shall be similarly bound. The undersigned hereby appoints the
undersigned's spouse as attorney-in-fact for the undersigned with respect to any
amendment or exercise of rights under the Plan or this Option Agreement.
_________________________
Spouse of Optionee
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<PAGE> 153
EXHIBIT A
ILOG S.A.
SOCIETE ANONYME HAVING A SHARE CAPITAL OF 24,798,780 FRANCS
REGISTERED OFFICE: []
1996 STOCK OPTION PLAN
EXERCISE NOTICE
(SHARE SUBSCRIPTION FORM)
ILOG S.A.
[]
Date:
Attention:
1. Exercise of Option. Effective as of today, , 199_, the
undersigned hereby elects to subscribe (______) shares (the "Shares")
of the Common Stock of ILOG S.A. (the "Company") under and pursuant to the
Company's 1996 Stock Option Plan (the "Plan") adopted by the Board of Directors
on May 30, 1996, as amended and the Stock Option Agreement dated ______________,
199_, (the "Option Agreement"). The subscription price for the Shares shall be
FF _____________________, as required by the Option Agreement.
2. Delivery of Payment. Purchaser herewith delivers to the Company the
full subscription price for the Shares.
3. Representation of Optionee. The Optionee acknowledges that Optionee
has received, read and understood the Plan and the Option Agreement and agrees
to abide by and be bound by their terms and conditions.
4. Rights as Shareholder. Until the issuance (as evidenced by the
appropriate entry on the books of the Company) of the Shares, the Optionee shall
have, as an Optionee, no right to vote or receive dividends or any other rights
as a shareholder shall exist with respect to the Optioned Stock, except those
the Optionee may have as a shareholder of the Company. No adjustment will be
made
<PAGE> 154
for rights in respect of which the record date is prior to the issuance date for
the Shares, except as provided in Section 11 of the Plan.
5. Tax Consultation. The Optionee understands that Optionee may suffer
adverse tax consequences as a result of Optionee's subscription or disposition
of the Shares. Optionee represents that Optionee has consulted with any tax
consultants Optionee deems advisable in connection with the subscription or
disposition of the Shares. The Optionee is not relying on the Company for any
tax advice.
6. Entire Agreement; Governing Law. The Plan and Option Agreement are
incorporated herein by reference. Reference is made to that certain Employment
Agreement by and between Optionee and ILOG, Inc. dated as of August __, 1997
(the "Employment Agreement"). This Exercise Notice, the Plan the Option
Agreement and the Employment Agreement constitute the entire agreement of the
parties with respect to the subject matter hereof and supersede in their
entirety all prior undertakings and agreements of the Company and Optionee with
respect to the subject matter hereof, and may not be modified adversely to the
Optionee's interest except by means of a writing signed by the Company and
Purchaser. In the event of any conflict between the provisions of this Exercise
Notice and the provisions of the Employment Agreement, the Employment Agreement
shall, to the extent of such conflict, control. This Exercise Notice is governed
by the laws of the Republic of France.
This Exercise Notice is delivered in two originals, one of which shall be
returned to the Optionee.
Submitted by: Accepted by:
OPTIONEE(*) ILOG S.A.
___________________________________
Signature by:
___________________________________ Its: CEO
Print Name
ADDRESS: ADDRESS:
____________________________________ ILOG S.A.
- ---------------------------
(*) The signature of the Optionee must be preceded by the following manuscript
mention "accepted for formal and irrevocable subscription of __________Shares."
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<PAGE> 155
EXHIBIT C
(Form of Confidential Information and Invention Assignment Agreement)
-8-
<PAGE> 156
EXHIBIT C
ILOG, INC.
CONFIDENTIAL INFORMATION AND
INVENTION ASSIGNMENT AGREEMENT
As a condition of my employment with ILOG, INC., its subsidiaries,
affiliates, successors or assigns (together the "COMPANY"), and in consideration
of my employment with the Company and my receipt of the compensation now and
hereafter paid to me by Company, I agree to the following:
1. CONFIDENTIAL INFORMATION.
(a) COMPANY INFORMATION. I agree at all times during the term
of my employment and thereafter, to hold in strictest confidence, and not to
use, except for the benefit of the Company, or to disclose to any person, firm
or corporation without written authorization of the Company, any Confidential
Information of the Company. I understand that "CONFIDENTIAL INFORMATION" means
any Company proprietary information, technical data, trade secrets or know-how,
including, but not limited to, research, product plans, products, services,
customer lists and customers (including, but not limited to, customers of the
Company on whom I called or with whom I became acquainted during the term of my
employment), markets, software, developments, inventions, processes, formulas,
technology, designs, drawings, engineering, hardware configuration information,
marketing, finances or other business information disclosed to me by the Company
either directly or indirectly in writing, orally or by drawings or observation
of parts or equipment. I further understand that Confidential Information does
not include any of the foregoing items which has become publicly known and made
generally available through no wrongful act of mine or of others who were under
confidentiality obligations as to the item or items involved.
(b) FORMER EMPLOYER INFORMATION. I agree that I will not,
during my employment with the Company, improperly use or disclose any
proprietary information or trade secrets of any former or concurrent employer or
other person or entity and that I will not bring onto the premises of the
Company any unpublished document or proprietary information belonging to any
such employer, person or entity unless consented to in writing by such employer,
person or entity.
(c) THIRD PARTY INFORMATION. I recognize that the Company has
received and in the future will receive from third parties their confidential or
proprietary information subject to a duty on the Company's part to maintain the
confidentiality of such information and to use it only for certain limited
purposes. I agree to hold all such confidential or proprietary information in
the strictest confidence and not to disclose it to any person, firm or
corporation or to use it except as necessary in carrying out my work for the
Company consistent with the Company's agreement with such third party.
2. INVENTIONS.
(a) INVENTIONS RETAINED AND LICENSED. I have attached hereto,
as Exhibit A, a list describing all inventions, original works of authorship,
developments, improvements, and trade secrets which were made by me prior to my
employment with CPLEX or the Company (collectively referred to
<PAGE> 157
as "PRIOR INVENTIONS"), which belong to me, which relate to the Company's
proposed business, products or research and development, and which are not
assigned to the Company hereunder; or, if no such list is attached, I represent
that there are no such Prior Inventions. If in the course of my employment with
the Company, I incorporate into a Company product, process or machine a Prior
Invention owned by me or in which I have an interest, the Company is hereby
granted and shall have a nonexclusive, royalty-free, irrevocable, perpetual,
worldwide license to make, have made, modify, use and sell such Prior Invention
as part of or in connection with such product, process or machine.
(b) ASSIGNMENT OF INVENTIONS. Save with respect to Inventions
(as defined herein) made by me in the course of research collaboration projects
with third party co-workers outside the scope of my employment with the
Company, which Inventions are inextricably interwoven with those of such third
party co-workers, I agree that I will promptly make full written disclosure to
the Company, will hold in trust for the sole right and benefit of the Company,
and hereby assign to the Company, or its designee, all my right, title, and
interest in and to any and all inventions, original works of authorship,
developments, concepts, improvements or trade secrets, whether or not
patentable or registrable under copyright or similar laws, which I may solely
or jointly conceive or develop or reduce to practice, or cause to be conceived
or developed or reduced in practice, during the period of time I am in the
employ of the Company (collectively referred to as "INVENTIONS"), except as
provided in Section 2(e) below. I further acknowledge that, except as provided
in Section 2(e) below, all original works of authorship which are made by me
(solely or jointly with others) within the scope of and during the period of my
employment with the Company and which are protectible by copyright are "works
made for hire," as that term is defined in the United States Copyright Act. For
purposes of this Section 2(b), I hereby undertake and agree that I will not
knowingly or intentionally embark on any new research collaboration projects
which would be outside of the scope of those undertaken by me as of the date
hereof without prior consultation with the Company.
(c) MAINTENANCE OF RECORDS. I agree to keep and maintain
adequate and current written records of all Inventions made by me (solely or
jointly with others) during the term of my employment with the Company. The
records will be in the form of notes, sketches, drawings, and any other format
that may be specified by the Company. The records will be available to and
remain the sole property of the Company at all times.
(d) PATENT AND COPYRIGHT REGISTRATIONS. I agree to assist the
Company, or its designee, at the Company's expense, in every proper way to
secure the Company's rights in the Inventions and any copyrights, patents, mask
work rights or other intellectual property rights relating thereto in any and
all countries, including the disclosure to the Company of all pertinent
information and data with respect thereto, the execution of all applications,
specifications, oaths, assignments and all other instruments which the Company
shall deem necessary in order to apply for and obtain such rights and in order
to assign and convey to the Company, its successors, assigns, and nominees the
sole and exclusive rights, title and interest in and to such Inventions, and any
copyrights, patents, mask work rights or other intellectual property rights
relating thereto. I further agree that my obligation to execute or cause to be
executed, when it is in my power to do so, any such instrument or papers shall
continue after the termination of this Agreement. If the Company is unable
because of my mental or physical incapacity or for any other reason to secure my
signature to apply for or to pursue any application for any United States or
foreign patents or copyright registrations covering Inventions or original works
of authorship assigned to the Company as above, then I hereby irrevocably
designate and appoint the Company and its
2
<PAGE> 158
duly authorized officers and agents as my agent and attorney in fact, to act for
and in my behalf and stead to execute and file any such applications and to do
all other lawfully permitted acts to further the prosecution and issuance of
letters patent or copyright registrations thereon with the same legal force and
effect as if executed by me.
(e) EXCEPTION TO ASSIGNMENTS. I understand that the provisions
of this Agreement requiring assignment of Inventions to the Company do not apply
to any invention which qualifies fully under the provisions of California Labor
Code Section 2870 (attached hereto as Exhibit A1).
3. CONFLICTING EMPLOYMENT. I agree that, during the term of my
employment with the Company, I will not engage in any other employment,
occupation, consulting or other business activity directly related to the
business in which the Company is now involved or becomes involved during the
term of my employment, nor will I engage in any other activities that conflict
with my obligations to the Company provided, however, that the Company
recognizes and agrees to my continued academic association and activities with
respect to Rice University.
4. RETURNING COMPANY DOCUMENTS. I agree that, at the time of leaving
the employ of the Company, I will deliver to the Company (and will not keep in
my possession, recreate or deliver to anyone else) any and all devices, records,
data, notes, reports, proposals, lists, correspondence, specifications, drawings
blueprints, sketches, materials, equipment, other documents or property, or
reproductions of any aforementioned items developed by me pursuant to my
employment with the Company or otherwise belonging to the Company, its
successors or assigns. In the event of the termination of my employment, I agree
to sign and deliver the "Termination Certification" attached hereto as Exhibit
B.
5. NOTIFICATION OF NEW EMPLOYER. In the event that I leave the employ
of the Company, I hereby grant consent to notification by the Company to my new
employer about my rights and obligations under this Agreement.
6. REPRESENTATIONS. I agree to execute any proper oath or verify any
proper document required to carry out the terms of this Agreement. I represent
that my performance of all the terms of this Agreement will not breach any
agreement to keep in confidence proprietary information acquired by me in
confidence or in trust prior to my employment by the Company. I have not entered
into, and I agree I will not enter into, any oral or written agreement in
conflict herewith.
7. ARBITRATION AND EQUITABLE RELIEF.
(a) ARBITRATION. Except as provided in Section 8(b) below, I
agree that any dispute or controversy arising out of or relating to any
interpretation, construction, performance or breach of this Agreement, shall be
settled by arbitration to be held in Santa Clara County, California, in
accordance with the rules then in effect of the American Arbitration
Association. The arbitrator may grant injunctions or other relief in such
dispute or controversy. The decision of the arbitrator shall be final,
conclusive and binding on the parties to the arbitration. Judgment may be
entered on the arbitrator's decision in any court having jurisdiction. The
Company and I shall each pay one-half of the costs and expenses of such
arbitration, and each of us shall separately pay our counsel fees and expenses.
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<PAGE> 159
(b) EQUITABLE REMEDIES. I agree that it would be impossible or
inadequate to measure and calculate the Company's damages from any breach of the
covenants set forth in Sections 1, 2, and 4 herein. Accordingly, I agree that if
I breach any of such Sections, the Company will have available, in addition to
any other right or remedy available, the right to obtain an injunction from a
court of competent jurisdiction restraining such breach or threatened breach and
to specific performance of any such provision of this Agreement.
8. GENERAL PROVISIONS.
(a) GOVERNING LAW; CONSENT TO PERSONAL JURISDICTION. This
Agreement will be governed by the laws of the State of California. I hereby
expressly consent to the personal jurisdiction of the state and federal courts
located in California for any lawsuit filed there against me by the Company
arising from or relating to this Agreement.
(b) ENTIRE AGREEMENT. This Agreement sets forth the entire
agreement and understanding between the Company and me relating to the subject
matter herein and merges all prior discussions between us. No modification of or
amendment to this Agreement, nor any waiver of any rights under this agreement,
will be effective unless in writing signed by the party to be charged. Any
subsequent change or changes in my duties, salary or compensation will not
affect the validity or scope of this Agreement.
(c) SEVERABILITY. If one or more of the provisions in this
Agreement are deemed void by law, then the remaining provisions will continue in
full force and effect.
(d) SUCCESSORS AND ASSIGNS. This Agreement will be binding
upon my heirs, executors, administrators and other legal representatives and
will be for the benefit of the Company, its successors, and its assigns.
Date: August__, 1997
___________________________________
Signature
Employee
____________________________
Witness
4
<PAGE> 160
Exhibit A to Robert Bixby Confidentiality Agreement
1. FORTRAN network extraction code written jointly over a period of several
years with Bob Fourer and William H. Cunningham (University of Waterloo,
Canada).
2. LP code (with dense linear algebra) written in FORTRAN, the complete rights
to which were signed over to Shell Oil a number of years ago.
3. Network simplex code (in C) embedded in Chesapeake MIMI modules.
<PAGE> 161
EXHIBIT A1
CALIFORNIA LABOR CODE SECTION 2870
EMPLOYMENT AGREEMENTS; ASSIGNMENT OF RIGHTS
"(a) Any provision in an employment agreement which provides that an
employee shall assign, or offer to assign, any of his or her rights in an
invention to his or her employer shall not apply to an invention that the
employee developed entirely on his or her own time without using the employer's
equipment, supplies, facilities, or trade secret information except for those
inventions that either:
(1) Relate at the time of conception or reduction to practice
of the invention to the employer's business, or actual or demonstrably
anticipated research or development of the employer.
(2) Result from any work performed by the employee for the
employer.
(b) To the extent a provision in an employment agreement purports to
require an employee to assign an invention otherwise excluded from being
required to be assigned under subdivision (a), the provision is against the
public policy of this state and is unenforceable."
5
<PAGE> 162
EXHIBIT B
ILOG, INC.
TERMINATION CERTIFICATION
This is to certify that I do not have in my possession, nor have I
failed to return, any devices, records, data, notes, reports, proposals, lists,
correspondence, specifications, drawings, blueprints, sketches, materials,
equipment, other documents or property, or reproductions of any aforementioned
items belonging to ILOG, Inc., its subsidiaries, affiliates, successors or
assigns (together, the "COMPANY").
I further certify that I have complied with all the terms of the
Company's Confidential Information and Invention Assignment Agreement signed by
me, including the reporting of any inventions and original works of authorship
(as defined therein), conceived or made by me (solely or jointly with others)
covered by that agreement.
I further agree that, in compliance with the Confidential Information
and Invention Assignment Agreement, I will preserve as confidential all trade
secrets, confidential knowledge, data or other proprietary information relating
to products, processes, know-how, designs, formulas, developmental or
experimental work, computer programs, data bases, other original works of
authorship, customer lists, business plans, financial information or other
subject matter pertaining to any business of the Company or any of its
employees, clients, consultants or licensees.
I further agree that for twelve (12) months from this date, I will not
hire any employees of the Company and I will not solicit, induce, recruit or
encourage any of the Company's employees to leave their employment.
Date: __________________________
______________________________
(Employee's Signature)
______________________________
(Type/Print Employee's Name)
6
<PAGE> 163
EXHIBIT F
COPYRIGHT ASSIGNMENT
<PAGE> 164
COPYRIGHT ASSIGNMENT
THIS COPYRIGHT ASSIGNMENT is made as of the Effective Date set forth below by
and between CPLEX Optimization, Inc., a Texas corporation having a place of
business at___________ ("ASSIGNOR") and ILOG Inc., a California corporation
having a place of business at_____________________________ ("ASSIGNEE").
WHEREAS, ASSIGNOR entered into and Asset Purchase Agreement (the "Agreement"),
dated as of this ____ day of August, 1997 with, among others, ASSIGNEE,
providing for the purchase by ASSIGNEE from ASSIGNOR of all of the assets
ASSIGNOR; and
WHEREAS, ASSIGNOR is the owner of the all rights, including copyrights, in the
works listed in Attachment A ("Works"), including, but not limited to, the right
to recover for past infringement throughout the world;
WHEREAS, pursuant to the Agreement, ASSIGNEE is to acquire all rights, title and
interest in and to the Works throughout the world; and
WHEREAS, ASSIGNOR is willing to assign to ASSIGNEE all rights, title and
interest as ASSIGNOR may possess in and to the Works throughout the world.
NOW, THEREFORE, for and in consideration of the sum of One Dollar ($1.00) and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, ASSIGNOR makes the following assignment and agrees as
follows:
1. ASSIGNMENT.
a. ASSIGNOR does hereby sell, assign, convey and transfer unto
ASSIGNEE, its successors and assigns, the entire right, title and interest,
anywhere in the universe, in and to the Works, and to any works from which the
Works are derived (including, without limitation, in and to all copyrights and
works protectable by copyright, whether now owned or hereafter created or
acquired, under the United States Copyright Act of 1976 or under any other
copyright law or similar law, statutory or common law, now or hereafter in force
and effect in the United States or any other countries or pursuant to any
treaties, covenants, or proclamations, with respect to the Works), and
including, without limitation, the right to sue for and recover damages for any
past, present or future infringement of the Works, to have and to hold the same,
unto ASSIGNEE, its successors, assigns and nominees, for the full duration of
all such rights, and any renewals and extensions thereof, as fully and entirely
as the as the same would have been held by ASSIGNOR had this assignment and
transfer not been made.
b. ASSIGNOR agrees that ASSIGNEE shall have the rights to register its
claim(s) of copyright in the Works, in its name, in the Copyright Offices of the
United States and any and all other countries of the world.
c. ASSIGNOR further agrees to execute any other documentation and take
other actions, at ASSIGNEE's expense, as may be necessary to enable ASSIGNEE to
perfect and sustain its rights in and to the Works.
<PAGE> 165
d. ASSIGNOR hereby constitutes and appoints ASSIGNEE as ASSIGNOR's true
and lawful attorney in fact, with full power of substitution in ASSIGNOR's name
and stead, to take any and all steps, including proceedings at law, in equity or
otherwise, to execute, acknowledge and deliver any and all instruments and
assurances necessary or expedient in order to vest or perfect the aforesaid
rights and causes of action more effectively in ASSIGNEE or to protect the same
or to enforce any claim or right of any kind with respect thereto. This
includes, but is not limited to, any rights with respect to the copyrights that
may have accrued in ASSIGNOR's favor from the respective date of first creation
of any of the Works to the Effective Date of this Assignment. ASSIGNOR hereby
declares that the foregoing power is coupled with an interest and as such is
irrevocable.
2. MISCELLANEOUS. If any provision of this Assignment shall be adjudged by any
court of competent jurisdiction to be unenforceable or invalid, that provision
shall be limited or eliminated to the minimum extent necessary so that this
Assignment shall otherwise remain in full force and effect and enforceable. This
Assignment shall be deemed to have been made in, and shall be construed pursuant
to the laws of the State of California and the United States America without
regard to conflicts of laws provisions thereof.
IN WITNESS WHEREOF, ASSIGNOR has executed this Assignment as of the Effective
Date set forth below.
Effective Date: August ___, 1997.
ASSIGNOR
By: _______________________________
Signature
_______________________________
Printed Name
_______________________________
Title
ACKNOWLEDGMENT
State of California )
) ss.
County of ________ )
On this _____ day of August 1997, before me, the undersigned,
personally appeared _____________________, personally known to me or proved to
me on the basis of satisfactory evidence to be the person who executed this
instrument on behalf of the corporation named herein, and acknowledged that s/he
executed it in such representative capacity.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal.
___________________________________
Notary Public
My Commission Expires on___________
2
<PAGE> 166
SCHEDULE A
All of ASSIGNOR's right, title and interest of every kind and
nature, in and to the following computer programs, in source and object code
form and related documentation, including without limitation, any copyrights
therein and including all of the copyright registrations listed below:
3
<PAGE> 167
EXHIBIT G
TRADEMARK ASSIGNMENT
<PAGE> 168
TRADEMARK ASSIGNMENT
THIS TRADEMARK ASSIGNMENT is made as of the Effective Date set forth below by
and between CPLEX Optimization, Inc., a Nevada corporation having a place of
business at __________________________________________________________________
("ASSIGNOR") and ILOG Inc., a California corporation having a place of business
at _______________________________________________________________ ("ASSIGNEE").
WHEREAS, ASSIGNOR entered into and Asset Purchase Agreement (the "Agreement"),
dated as of this ____ day of August, 1997 with, among others, ASSIGNEE,
providing for the purchase by ASSIGNEE from ASSIGNOR of all of the assets
ASSIGNOR; and
WHEREAS, ASSIGNOR is the owner of the trademarks and trademark applications
listed in Attachment A ("Trademarks"), and all other rights appurtenant thereto,
including, but not limited to, all common law rights, trade name rights and the
right to recover for past infringement throughout the world;
WHEREAS, ASSIGNOR has acquired goodwill associated with and symbolized by the
Trademarks and has not abandoned the same;
WHEREAS, pursuant to the Agreement, ASSIGNEE is to acquire all rights, title and
interest in and to the Trademarks throughout the world; and
WHEREAS, ASSIGNOR is willing to assign to ASSIGNEE all rights, title and
interest as ASSIGNOR may possess in and to the Trademarks throughout the world.
NOW, THEREFORE, for and in consideration of the sum of One Dollar ($1.00) and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, for and in consideration of the sum of One Dollar ($1.00)
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged ASSIGNOR makes the following assignment and agrees as
follows:
1. ASSIGNMENT.
a. ASSIGNOR hereby assigns and sells to ASSIGNEE all of ASSIGNOR's
rights, title and interest in and to the Trademarks throughout the world,
together with the goodwill symbolized by the Trademarks; said rights, title and
interest include, without limitation, any and all causes of action heretofore
accrued in ASSIGNOR's favor for infringement of the aforesaid rights, to have
and to hold the same unto ASSIGNEE, its successors and assigns, for and during
the existence of the rights and all renewals thereof.
b. At any time, and from time to time hereafter, ASSIGNOR shall
forthwith, upon ASSIGNEE's written request, take any and all steps to execute,
acknowledge and deliver to ASSIGNEE any and all further instruments and
assurances necessary or expedient in order to vest the aforesaid rights in
ASSIGNEE and to facilitate ASSIGNEE's enjoyment and enforcement of said rights
and causes of action.
<PAGE> 169
c. ASSIGNOR hereby constitutes and appoints ASSIGNEE as ASSIGNOR's true
and lawful attorney in fact, with full power of substitution in ASSIGNOR's name
and stead, to take any and all steps, including proceedings at law, in equity or
otherwise, to execute, acknowledge and deliver any and all instruments and
assurances necessary or expedient in order to vest or perfect the aforesaid
rights and causes of action more effectively in ASSIGNEE or to protect the same
or to enforce any claim or right of any kind with respect thereto. This
includes, but is not limited to, any rights with respect to the Trademarks that
may have accrued in ASSIGNOR's favor from the respective date of first use of
any of the Trademarks to the Effective Date of this Assignment. ASSIGNOR hereby
declares that the foregoing power is coupled with an interest and as such is
irrevocable.
2. MISCELLANEOUS. If any provision of this Assignment shall be adjudged by any
court of competent jurisdiction to be unenforceable or invalid, that provision
shall be limited or eliminated to the minimum extent necessary so that this
Assignment shall otherwise remain in full force and effect and enforceable. This
Assignment shall be deemed to have been made in, and shall be construed pursuant
to the laws of the State of California and the United States America without
regard to conflicts of laws provisions thereof.
IN WITNESS WHEREOF, ASSIGNOR has executed this Assignment as of the Effective
Date set forth below.
Effective Date: August 20, 1997
CPLEX OPTIMIZATION, INC. (ASSIGNOR)
By: _______________________________
Signature
_______________________________
Printed Name
_______________________________
Title
ACKNOWLEDGMENT
State of Nevada )
) ss:
County of _____ )
On this __ day of August 1997, before me, the undersigned, personally
appeared ___________, personally known to me or proved to me on the basis of
satisfactory evidence to be the person who executed this instrument on behalf of
the corporation named herein, and acknowledged that s/he executed it in such
representative capacity.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal.
_______________________________________
Notary Public
My Commission Expires on_______________
2
<PAGE> 170
EXHIBIT A
Trademarks
CPLEX
3
<PAGE> 171
EXHIBIT H
INTERNET DOMAIN NAME TRANSFER AGREEMENT
<PAGE> 172
INTERNET DOMAIN NAME TRANSFER AGREEMENT
THIS INTERNET DOMAIN NAME TRANSFER AGREEMENT ("Agreement") is effective as of
August __, 1997 (the "Effective Date") by and between CPLEX Optimization, Inc.,
a Nevada corporation having a place of business at _________________________
________________ ("ASSIGNOR") and ILOG Inc., a California corporation having a
place of business at _____________________________________________ ("ASSIGNEE").
WITNESSETH:
WHEREAS, ASSIGNOR entered into and Asset Purchase Agreement (the "Asset Purchase
Agreement"), dated as of this ____ day of August, 1997 with, among others,
ASSIGNEE, providing for the purchase by ASSIGNEE from ASSIGNOR of all of the
assets ASSIGNOR; and
WHEREAS, ASSIGNOR registered with InterNIC the domain name CPLEX.COM and
ASSIGNOR is the current owner of that name; and
WHEREAS, ASSIGNEE desires to obtain the CPLEX.COM domain name and ASSIGNOR is
willing to transfer it to ASSIGNEE.
NOW THEREFORE, for and in consideration of the mutual representations, promises,
terms, and conditions contained herein and in the Asset Purchase Agreement, the
parties agree as follows:
1. ASSIGNOR hereby assigns to ASSIGNEE all right, title and interest
worldwide in and to the CPLEX.COM domain name, together with any goodwill
associated therewith. ASSIGNOR represents and warrants that ASSIGNOR has the
full power to enter into and perform this Agreement.
2. ASSIGNOR agrees to immediately apply to InterNIC to transfer
ownership and management of CPLEX.COM to ASSIGNEE or its designee pursuant to
the current procedures promulgated by InterNIC/Network Solutions, Inc. (the
"NIC") for modifying a domain record. Specifically, ASSIGNOR shall instruct the
NIC to change the billing name, technical contact, and administrative contact
for CPLEX.COM ___________________.
3. ASSIGNOR shall provide or execute such other information or
documents, and send such electronic mail messages, as may be necessary to
accomplish the transfer of the
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<PAGE> 173
domain name upon ASSIGNEE's reasonable request, and so that ASSIGNEE may take
control of the CPLEX.COM domain immediately upon transfer by NIC.
4. ASSIGNOR represents and warrants, that to the best of its knowledge
there or no, and it knows of no basis for, disputes or challenges regarding its,
or ASSIGNEE's, use of the CPLEX.COM domain name.
5. This Agreement will be governed by and construed in accordance with
the laws of the State of California applicable to contracts made and performed
in California by California residents.
IN WITNESS WHEREOF, ASSIGNOR has executed this Assignment as of the Effective
Date set forth above.
CPLEX OPTIMIZATION, INC. (ASSIGNOR)
By: _______________________________
Signature
_______________________________
Printed Name
_______________________________
Title
ILOG, INC. ("ASSIGNEE")
By: _______________________________
Signature
_______________________________
Printed Name
_______________________________
Title
2
<PAGE> 174
EXHIBIT I
CPLEX LICENSE AGREEMENT
<PAGE> 175
CPLEX LICENSE AGREEMENT
THIS AGREEMENT is made and entered into as of this ____ day of August, 1997 by
and between Robert Bixby ("Bixby"), an individual residing at ________________
__________________ and CPLEX Optimization, Inc. ("CPLEX"), a Nevada corporation
having a place of business at _______________________________________________
____________________ (together, the "Parties").
RECITALS
1. On March 1, 1989, Bixby and CPLEX entered into an agreement (the
"License Agreement") pursuant to which Bixby, among other things,
granted CPLEX an exclusive license to certain software known as
"CPLEX."
2. Pursuant to the License Agreement, Bixby agreed to transfer to CPLEX
all of his right, title and interest in the CPLEX software and related
intellectual property rights following the payment to Bixby of
royalties equal to $300,000.00.
3. The Parties wish to acknowledge and confirm that Bixby has received
such $300,000.00 and has transferred all of his right, title and
interest in and to the CPLEX software to CPLEX, and that CPLEX is the
sole and exclusive owner of such software and all associated
intellectual property rights.
4. The Parties anticipate that the assets and business of CPLEX will be
acquired by ILOG S.A. ("ILOG") and that the entering into of this
Agreement will be a condition precedent to ILOG's acquisition of
CPLEX's assets and business, a transaction from which Bixby will
benefit materially.
5. On the date hereof, Bixby and ILOG entered into an agreement (the
"Technology Access Letter") pursuant to which ILOG, as the successor to
CPLEX, will grant to Bixby certain access and rights to the CPLEX
software and technology as described therein.
NOW, THEREFORE, in consideration of the foregoing and other good and valuable
consideration, the receipt of which is hereby acknowledged, the parties hereto
agree as follows:
1. Definition of CPLEX Software. For the purposes of this Agreement, CPLEX
Software means: (i) the linear programming software, in object code and source
code form, known as "CPLEX" that was the subject of the License Agreement and
all related documentation, (ii) all updates, enhancements, additions to, and
derivatives of the CPLEX software as provided by Bixby to CPLEX pursuant to the
License Agreement, whether made by CPLEX or Bixby, (iii) all technology,
including know how, inventions (whether patentable or not), proprietary
algorithms and methods embodied in or by the CPLEX software, and (iv) all
intellectual property rights, including, without limitation, patent, copyright,
trademark and trade secret rights, embodied by, or associated with, any of the
foregoing.
<PAGE> 176
2. Acknowledgment. Bixby hereby acknowledges that, in accordance with the
License Agreement, he has received at least $300,000.00 in royalties with
respect to the CPLEX Software and that no further payments are due to him
pursuant to the License Agreement or otherwise with respect to the CPLEX
Software.
3. Assignment.
a. In consideration of $10 (the receipt of which is hereby
acknowledged) and other good and valuable consideration, Bixby hereby
irrevocably assigns and transfers to CPLEX all right, title and interest in and
to the CPLEX Software (including all intellectual property rights) throughout
the world, including without limitation, all causes of action (including the
right to seek damages for the infringement of any intellectual property rights
associated with the CPLEX Software) that accrued in favor of Bixby, and to hold
the same for the benefit of CPLEX (and its successors and assigns) as Bixby
would have had had this assignment not taken place.
b. Except as may be permitted pursuant to the License Agreement, Bixby
shall not retain in his possession, or use, any copy or version of the CPLEX
Software and shall not have, or retain any rights or licenses with respect to,
or in, the CPLEX Software. Without limiting the foregoing, Bixby shall not use
or disclose to any person any confidential information or trade secret embodied
in or by the CPLEX Software.
4. Further Actions. At any time, and from time to time hereafter, Bixby shall
forthwith, upon CPLEX's (or its successors' or assigns') written request and at
its expense, take any and all steps necessary to execute, acknowledge and
deliver to CPLEX (or its successors or assigns), any and all further instruments
and assurances necessary or expedient in order to invest all right, title and
interest in the CPLEX Software in CPLEX (or its successors or assigns) and to
facilitate CPLEX's (or its successors' and assigns') enjoyment and enforcement
of such rights.
5. Power of Attorney. Bixby hereby constitutes and appoints CPLEX as Bixby's
true and lawful attorney-in-fact with full power of substitution in Bixby's name
and stead at the expense of ILOG, to take any and all steps, including
proceedings at-law, in equity or otherwise, to execute, acknowledge and deliver
any and all documents, instruments and assurances necessary or expedient in
order to vest or perfect all rights in the CPLEX Software in CPLEX (or its
successors or assigns), to protect the same, or to enforce any claim or any
right of any kind with respect thereto. This includes, but is not limited to,
any rights with respect to the CPLEX Software that may have accrued in Bixby's
favor at any time prior to the date of this Agreement. Bixby hereby declares
that the foregoing power is coupled with an interest and, as such, is
irrevocable.
6. Representations and Warranties. Bixby hereby represents and warrants that:
(i) he has not granted any third party any rights, interests or licenses in, or
with respect to, the CPLEX Software or any part thereof which derive as the
result of any instrument executed or act taken by Bixby; (ii) no third party has
any interest in, and there are no liens or encumbrances on, the CPLEX Software
or any rights
2
<PAGE> 177
associated with the CPLEX Software; (iii) the CPLEX Software, as
provided by Bixby to CPLEX, was an original work of Bixby exclusively and does
not misappropriate any third-party's trade secrets or infringe any third-party's
patents, copyrights, trademarks, trade secrets or other intellectual property
rights; (iv) he has the right and authority to enter into this Agreement; (v)
his entering into and performance under this Agreement will not violate any
agreement or understanding between Bixby and any third party or require any
payment to any third party; and (vi) CPLEX (or its successors and assigns) will
be able to use and exploit the CPLEX Software without restrictions or obligation
to any third party which derive as the result of any instrument executed or act
taken by Bixby.
7. Independent Contractors. The parties hereto are independent contractors and
are not partners, joint venturers or otherwise affiliated, and except as set
forth in Section 5, neither party has any right or authority to bind the other
in any way.
8. Assignment. CPLEX may assign or otherwise transfer this Agreement or any of
its rights, or delegate any of its obligations, under this Agreement without the
prior written consent of Bixby.
9. Notices. All notices, requests, demands and other communications required or
permitted to be given under this Agreement shall be in writing and shall be
deemed to have been duly given only if personally delivered, delivered by a
commercial rapid delivery courier service with tracking capabilities or mailed
by certified or registered mail, return receipt requested, costs and postage
prepaid, to a party at the address set forth above or such other address as a
party last provided to the other by written notice.
10. Amendment, Modification and Waiver. The failure of either party to enforce
its rights or to require performance by the other party of any term or condition
of this Agreement shall not be construed as a waiver of such rights or of its
right to require future performance of that term or condition. Any amendment or
modification of this Agreement or any waiver of any breach of any term or
condition of this Agreement must be in a writing signed by both parties in order
to be effective, and any such waiver shall not be construed as a waiver of any
continuing or succeeding breach of such term or condition, a waiver of the term
or condition itself or a waiver of any right under this Agreement.
11. Governing Law. This Agreement shall be governed and interpreted under the
laws of the State of California without regard to the conflicts of laws
provisions thereof.
12. Headings. Headings and captions are for convenience of reference only and
shall not be deemed to interpret, supersede or modify any provisions of this
Agreement.
13. Severability. In the event that any provision of this Agreement shall be
determined by a court of competent jurisdiction to be illegal or unenforceable,
that provision will be limited or eliminated to the minimum extent necessary so
that this Agreement shall otherwise remain in full force and effect and
enforceable.
3
<PAGE> 178
14. Entire Agreement. Upon execution by both parties, this Agreement shall
constitute the entire agreement between the parties with respect to the subject
matter hereof and supersedes all discussions, negotiations, agreements and past
dealings, either oral or written, between or among the parties relating to the
subject matter hereof, including the License Agreement.
15. Nonexclusive Remedies. The rights and remedies of a party set forth herein
are not exclusive, the exercise thereof shall not constitute an election of
remedies and the aggrieved party shall in all events be entitled to seek
whatever additional remedies may be available in law or in equity.
IN WITNESS WHEREOF, intending to be legally bound hereby, the parties have
executed this Agreement below.
Dr. Robert Bixby CPLEX Optimization, Inc.
______________________ by: ______________________________
Name:
Title:
4
<PAGE> 179
EXHIBIT J
TECHNOLOGY ACCESS LETTER
<PAGE> 180
[ON ILOG S.A. LETTERHEAD]
Dear Dr. Bixby:
In connection with the acquisition by ILOG S.A. (the "Company") of
substantially all of the assets of CPLEX Optimization, Inc. ("CPLEX") pursuant
to the Asset Purchase Agreement dated August 4, 1997 (the "Agreement"), and
because it is in the Company's and your best interests, I have summarized below
the terms and conditions of your continued access and rights to the CPLEX
software and technology.
1. Consistent with your employment with the Company, you will be
granted access to the source code for a period expiring on the latest of (x)
five years from the Closing Date (as defined under the Agreement) and (y) the
date of termination of your employment by the Company provided, however, that
should your employment be terminated for "cause" (as defined in your Employment
Agreement with the Company's Subsidiary) or by your voluntary resignation, then
your access to the source code shall be withdrawn.
2. Upon your written request made to the Company, the Company will
grant non-transferable object code licenses to academic institutions for
purposes of promotion of research and (a) regular updates will be made available
to such licensees for so long as your employment continues with Company; and (b)
a perpetual license of the current version of the software will be granted to
such licensees upon termination of your employment with the Company.
3. Upon your written request made to Company, an unlimited number of
non-transferable object code licenses will be granted to Rice University on the
same terms and subject to the same conditions as the academic licenses referred
to in 2 above provided, however, that such licenses are CPU specific, with
updates provided for the duration of your association with Rice. After
termination of your association with Rice, such licenses will be perpetual but
will be without any commitment to update.
4. You will be granted perpetual object code CPU specific licenses with
updates for a "modest" number of CPU's.
5. You will be granted perpetual access to the problem test bed. For
purposes of this paragraph "test bed" means the collection of proprietary
problems existing at the time of termination of your employment with Company.
Upon such termination, you will be entitled to retain a copy of the test bed.
<PAGE> 181
6. Non-CPU specific object code licenses will be granted for your two
TSP co-workers so long as they remain co-workers.
7. You will be entitled to give talks and teach classes related to the
CPLEX LP/MIP as you have done in the past provided that such discussions may not
relate to any products or derivative products beyond those that you would
otherwise have access to in accordance with the above provisions.
The above access and rights to CPLEX software and technology are
conditional upon the following:
a) such access and rights will be exercised in a manner consistent
with the protection of the Company's confidential information and the protection
of its intellectual property rights;
b) such access and rights will be used for academic research purposes
only and may not be used by you or licensed or otherwise used by or on behalf of
any third party for any commercial purpose; and
c) following the termination of your employment with the Company for
any reason you will be subject to the same confidentiality obligations as those
in force during your employment.
This letter is addressed to you personally and is not for the benefit
of any third party and does not of itself constitute the grant of a license.
Sincerely,
Chief Executive Officer
READ, UNDERSTOOD AND AGREED
_______________________________
Robert Bixby
<PAGE> 182
EXHIBIT K
INVESTMENT REPRESENTATIONS
<PAGE> 183
INVESTMENT REPRESENTATION STATEMENT
ILOG S.A.
9, rue de Verdun, BP 85
94523 Gentilly Cedex
Republic of France
In connection with the proposed issuance by ILOG S.A., a societe
anonyme organized under the laws of The Republic of France (the "COMPANY"), of
shares delivered in the form of American Depositary Shares, represented by
American Depositary Receipts (the "SECURITIES") pursuant to the Asset
Contribution Agreement which is part of the Asset Purchase Agreement dated
August __, 1997 (collectively, the "ASSET PURCHASE AGREEMENT") ________
______________________________________________________ ("PURCHASER") hereby
agrees, represents and warrants as follows:
1. Obtain Entirely for Own Account.
Beneficiary represents and warrants that Beneficiary is
obtaining the Securities solely for Beneficiary's own account for investment and
not with a view to or for sale or distribution of the Securities or any portion
thereof and not with any present intention of selling, offering to sell or
otherwise disposing of or distributing the Securities or any portion thereof.
Beneficiary also represents that the entire legal and beneficial interest of the
Securities is being purchased for, and will be held for the account of,
Beneficiary only and neither in whole nor in part for any other person or
entity.
2. Preexisting Relationship with Company; Financial and Business
Experiences; Accredited Investor. Beneficiary represents and warrants that
either (i) Beneficiary has a prior business and/or personal relationship with
the Company and/or its officers and directors, or (ii) by reason of
Beneficiary's business or financial experience or the business or financial
experience of Beneficiary's professional advisors who are unaffiliated with the
Company, and who are not compensated by the Company, Beneficiary has the
capacity to protect Beneficiary's own interests in connection with the purchase
of the Securities, or (iii) Beneficiary is an "accredited investor" within the
meaning of that term under Rule 501(a) of the Securities Act of 1933, as
amended.
3. Information Concerning Company.
Beneficiary represents and warrants that Beneficiary is
familiar with the Company's plans, operations and financial condition and that
Beneficiary has heretofore received all such infor mation as Beneficiary deems
necessary and appropriate to enable Beneficiary to evaluate the financial risk
inherent in making an investment in the Securities of the Company.
4. Economic Risk.
Beneficiary represents and warrants that Beneficiary realizes
that the receipt of the Securities will be a highly speculative investment and
that Beneficiary is able, without impairing Beneficiary's financial condition,
to hold the Securities for an indefinite period of time and to suffer a
complete loss of Beneficiary's investment.
<PAGE> 184
5. Restricted Securities.
Purchaser understands that:
(a) the transaction under which Beneficiary is obtaining the
Securities has not been registered under the Securities Act of 1933, as amended
(the "SECURITIES ACT"), and the Securities must be held indefinitely unless
subsequently registered under the Securities Act or an exemption from such
registration is available;
(b) the Securities have not been registered under the
Securities Act in reliance upon a specific exemption therefrom, which exemption
depends upon, among other things, the bona fide nature of its investment intent
as expressed herein; and that, in the view of the Securities and Exchange
Commission (the "SEC"), the statutory basis for such exemption may be
unavailable if this representation was predicated solely upon a present
intention to hold the Securities for the minimum capital gains period specified
under tax statutes, for a deferred sale, for or until an increase or decrease in
the market price of the Securities, or for a period of one year or any other
fixed period in the future;
(c) the Securities of the Company will be stamped with the
following legends restricting transfer:
i.THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT") AND
ARE "RESTRICTED SECURITIES" AS DEFINED IN RULE 144 PROMULGATED UNDER THE ACT.
THE SECURITIES MAY NOT BE SOLD OR OFFERED FOR SALE OR OTHERWISE DISTRIBUTED
EXCEPT (i) IN CONJUNCTION WITH AN EFFECTIVE REGISTRATION STATEMENT FOR THE
SHARES UNDER THE ACT OR (ii) IN COMPLIANCE WITH RULE 144, OR (iii) PURSUANT TO
AN OPINION OF COUNSEL, SATISFACTORY TO THE CORPORATION, THAT SUCH REGISTRATION
OR COMPLIANCE IS NOT REQUIRED AS TO SAID SALE, OFFER OR DISTRIBUTION.
ii. THE HOLDER WHOSE NAME APPEARS ON THIS CERTIFICATE
WAS AN AFFILIATE OF THE ISSUER ON THE DATE OF ISSUANCE HEREOF. SUCH SHARES MAY
NOT BE SOLD, EXCHANGED, PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF EXCEPT IN
COMPLIANCE WITH RULE 144 OF THE SECURITIES ACT OF 1933, AS AMENDED.
(d) the Company will make a notation in its records of the
aforementioned restrictions on transfer and legends; and
(e) the Securities must be held indefinitely unless
subsequently registered under the Securities Act or unless an exemption from
registration is otherwise available, and the Company is under no obligation to
register the Securities except as provided in the Asset Purchase Agreement.
<PAGE> 185
6. Disposition under Rule 144.
(a) Purchaser represents and warrants that Purchaser is
familiar with the provisions of Rule 144, promulgated under the Securities Act,
which, in substance, permits limited public resale of "restricted securities"
acquired, directly or indirectly, from the issuer thereof (or from an affiliate
of such issuer) in a non-public offering subject to the satisfaction of certain
conditions, including, among other things: (1) the availability of certain
public information about the Company; (2) the resale occurring not less than one
year after the party has purchased, and made full payment for, within the
meaning of Rule 144, the securities to be sold; and (3) in the case of an
affiliate, or of a non-affiliate who has held the securities less than two
years, the sale being made through a broker in an unsolicited "broker's
transaction" or in transactions directly with a market maker (as said term is
defined under the Securities Exchange Act of 1934) and the amount of securities
being sold during any three month period not exceeding the specified limitations
stated therein, if applicable.
(b) Purchaser further understands that at the time
Purchaser wishes to sell the Securities there may be no public market upon
which to make such a sale, and that, even if such a public market then exists,
the Company may not be satisfying the current public information requirements of
Rule 144, and that, in such event, Purchaser would be precluded from selling
the Securities under Rule 144 even if the one-year minimum holding period had
been satisfied.
(c) Purchaser further understands that in the event all of
the applicable requirements of Rule 144 are not satisfied, registration under
the Securities Act, compliance with Regulation A, or some other registration
exemption will be required; and that, notwithstanding the fact that Rule 144 is
not exclusive, the Staff of the SEC has expressed its opinion that persons
proposing to sell private placement securities other than in a registered
offering and otherwise than pursuant to Rule 144 will have a substantial burden
of proof in establishing that an exemption from registration is available for
such offers or sales, and that such persons and their respective brokers who
participate in such transactions do so at their own risk.
7. Further Limitations on Disposition.
Without in any way limiting the representations set forth
above, Purchaser further agrees that Purchaser shall in no event make any
disposition of all or any portion of the Securities which Purchaser is
obtaining unless and until:
(a) There is then in effect a Registration Statement under the
Securities Act covering such proposed disposition and such disposition is made
in accordance with said Registration Statement; or
(b) Purchaser shall have (i) notified the Company of the
proposed disposition and shall have furnished the Company with a detailed
statement of the circumstances surrounding the proposed disposition and (ii) if
reasonably requested by Company, furnished the Company with an opinion of
counsel acceptable to the Company to the effect that such disposition will not
require registration of such shares under the Securities Act.
Notwithstanding the foregoing, Purchaser agrees that
Purchaser shall not request that a transfer of the Securities be made in
reliance on Rule 144(k) or the legend referring to restrictions on
<PAGE> 186
transfer under the Securities Act be removed in reliance on Rule 144(k) under
the Securities Act unless the Company is subject to the reporting requirements
under the Securities Exchange Act of 1934, as amended, and has been subject to
such reporting requirements for ninety (90) days prior to said request and that
prior to such time any transfer shall only be made as a private resale pursuant
to which the transferee shall acquire such shares subject to such legend.
Dated as of August 20, 1997
Very truly yours,
_________________________________
_________________________________
Print Name of Purchaser
_________________________________
Print Name of Authorized Signatory
(if Entity)
_________________________________
Address
_________________________________
ACCEPTED AND AGREED TO:
ILOG S.A.
_________________________________
_________________________________
Print Name of Authorized Signatory
_________________________________
Title
<PAGE> 187
EXHIBIT L
OPINION OF PORTER AND HEDGES
<PAGE> 188
EXHIBIT L
[Letterhead of Porter & Hedges, L.L.P.]
August __, 1997
ILOG S.A.
- -------------------------
- -------------------------
ILOG S.A.
- -------------------------
- -------------------------
Ladies and Gentlemen:
We have acted as special counsel to CPLEX Optimization, Inc., a Nevada
corporation ("New CPLEX"), CPLEX Optimization, Inc., a former Texas corporation
and the predecessor by merger of New CPLEX ("Old CPLEX"), and Todd A. Lowe,
Janet Lowe and Robert Bixby, who at August 4, 1997 and at the time of the
consummation of the merger of Old CPLEX into New CPLEX (the "Reincorporation
Merger") constituted all of the shareholders of Old CPLEX, and who now
constitute, and at all times since the Reincorporation Merger have constituted,
all of the shareholders of New CPLEX (collectively, the "Shareholders"), in
connection with the negotiation, execution and delivery of, and the consummation
of the transactions contemplated in, (i) the Asset Purchase Agreement dated as
of August 4, 1997 (the "Purchase Agreement"), among ILOG S.A., a French societe
anonyme ("ILOG"), ILOG Inc., a California corporation and a wholly owned
subsidiary of ILOG ("ILOG, U.S."), Old CPLEX (whose rights and obligations under
the Purchase Agreement have been succeeded to by New CPLEX as a result of the
Reincorporation Merger), and the Shareholders, and (ii) the Asset Contribution
Agrement (contrat d' apport) dated August __, 1997 (the "Contribution
Agreement"), between CPLEX and, Old CPLEX. In this opinion:
<PAGE> 189
ILOG S.A.
ILOG, Inc.
August __, 1997
Page 2
(i) the Purchase Agreement and the Contribution Agreement
are together referred to as the "Agreements";
(ii) ILOG and ILOG U.S. are together referred to as the
"Purchasers";
(iii) "Seller" refers to (x) Old CPLEX in respect of and at
all times up to the time of consummation of the Reincorporation Merger
and (y) New CPLEX in respect of and at all times from and after the time
of consummation of the Merger;
(iv) the instruments of transfer, conveyance, assignment
being executed and delivered by the Seller to the respective Purchasers
on the date hereof, pursuant to the Agreements, are collectively
referred to as the "Conveyance Documents";
(v) the Agreements and the Conveyance Documents are
collectively referred to as the "Transaction Documents"; and
(vi) capitalized terms used but not defined in this opinion
have the respective meanings assigned to them in the Purchase
Agreement.
The Agreements provide for the acquisition by the respective Purchasers
of substantially all of the assets of the Seller related to the Business, and
this opinion is being rendered pursuant to Section __ of the Agreement.
For purposes of rendering the opinions set forth herein, we have
examined the following:
(i) the Purchase Agreement and an English transaction of
the Contribution Agreement;
(ii) each of the Conveyance Documents;
(iii) the Articles of Incorporation and bylaws of Old CPLEX as
in effect at, and as amended through, the time of the consummation of
the Reincorporation Merger;
(iv) the Certificate of Incorporation and bylaws of New
CPLEX;
(v) the minute books and stock transfer records of each of
Old CPLEX and New CPLEX; and
<PAGE> 190
ILOG S.A.
ILOG, Inc.
August __, 1997
Page 3
(vi) originals or copies of such certificates of public
officials and officers of the Seller, and such other documents, as we
have deemed necessary or appropriate as a basis for the opinions set
forth herein.
We have been engaged by the Seller and the shareholders solely to
represent them in connection with the transactions contemplated by the
Agreement (including the Reincorporation Merger), and you are advised that we
do not now and have never served as general counsel to the Seller or any of the
Shareholders or represented them on any other matters or in any other capacity
and we are not generally familiar with the affairs of the Seller or the
respective Shareholders.
In connection with rendering the opinions set forth herein, we have
assumed the genuineness of all signatures, the capacity of all natural persons,
the authenticity of all documents submitted to us as originals, and the
conformity to the original documents of documents submitted to us as certified
photostatic copies. As to certain factual matters relevant to the opinions
expressed herein, we have relied upon representation, of the Seller and the
Shareholders made in the Purchase Agreement and representations made in
certificates of officers of the Sellers, in each case without independently
investigating or verifying their accuracy.
With respect to all parties (other than the Seller and the
Shareholders) who have executed any of the Transaction Documents, we have
assumed that:
(i) such documents are legal, valid, binding and enforceable
in accordance with their terms as to each such party;
(ii) no such party is involved in any court, administrative
or other proceeding or subject to any order, writ, injunction or decree
which would prohibit the execution, delivery and performance of such
documents by such party; and
(iii) there is no requirement of consent, approval or
authorization by a person or governmental authority with respect to such
parties other than has been duly obtained.
We have also assumed the correctness of all statements set forth in
certificates or other written documents of state officials and certificates of
officers of the Seller, in each case without independently investigating or
verifying their accuracy. We further assume that (i) none of the parties upon
whom we have relied for purposes of this opinion has perpetrated a fraud on any
of the other parties to the transaction or any of the attorneys representing
any such parties, and (ii) neither Purchaser, no representative of either of
the Purchasers, nor any attorney representing either of the
<PAGE> 191
ILOG S.A.
ILOG, Inc.
August __, 1997
Page 4
Purchasers has any opinion regarding the subject matter of this opinion which
is contrary to or inconsistent with any opinions expressed herein.
Based on the foregoing, and subject to the qualifications and
limitations hereinafter set forth, we are of the opinion that:
1. At the time of its execution of the Purchase Agreement and at
all times thereafter through the consummation of the Reincorporation Merger,
Old CPLEX was a corporation duly incorporated, validly existing and in good
standing under the laws of the State of Texas, with full corporate power and
authority to own or lease and operate and use its assets and properties, to
carry on its business as then conducted, and execute, deliver and perform its
obligations under the Agreement.
2. New CPLEX is a corporation duly incorporated, validly existing
and in good standing under the laws of the State of Nevada, with full corporate
power and authority to own or lease and operate and use its assets and
properties, to carry on its business as now conducted and to perform its
obligations under the Transaction Documents.
3. At the time of its execution of the Purchase Agreement and at
all times thereafter through the consummation of the Reincorporation Merger,
Old CPLEX was qualified to do business and was in good standing as a foreign
corporation in the State of Nevada. Neither the location of its assets or
properties nor the nature of its operations requires New CPLEX to be qualified
to do business as a foreign corporation in any jurisdiction wherein failure to
be so qualified would have a Material Adverse Effect, provided, however, that
we express no opinion as to whether New CPLEX is required to be qualified to do
business as a foreign corporation in the State of New Jersey as a result of
facts which have been disclosed to the Purchasers by the Seller and the
Shareholders.
4. Based on our review of the stock transfer records of the
Seller, at the time of Old CPLEX's execution of the Purchase Agreement and at
all times thereafter through the consummation of the Reincorporation Merger,
the authorized capital stock of Old CPLEX consisted of 5,000 shares of Common
Stock, $1 par value per share, of which 1,095 shares were issued and
outstanding and owned of record (and, to our knowledge, beneficially) by the
Shareholders in the following amounts: Todd A. Lowe, _______ shares; Janet Lowe
_______ shares; and Robert Bixby, _______ shares, and (ii) the authorized
capital stock of New CPLEX consists of 5,000 shares of Common Stock, $1 par
value per share, of which 1,095 shares are issued and outstanding and owned of
record by the Shareholders in the same proportions as they held the outstanding
shares of Common Stock of Old CPLEX at the time of consummation of the
Reincorporation Merger. To our knowledge, there are not outstanding any options,
warrants or similar rights to acquire capital stock of New CPLEX, and there
were not
<PAGE> 192
ILOG S.A.
ILOG, Inc.
August __, 1997
Page 5
outstanding immediately prior to the Reincorporation Merger or at either the
date of execution of the Purchase Agreement or the date the Shareholders
approved the transactions contemplated in the Purchase Agreement, any options,
warrants or similar rights to acquire capital stock of Old CPLEX.
5. The execution, delivery and performance by Old CPLEX of the
Transaction Documents were duly and validly authorized by its Board of
Directors and approved by its shareholders as required by law and its Articles
of Incorporation and bylaws, and at the time of consummation of the
Reincorporation Merger, the Purchase Agreement constituted valid and binding
obligation of Old CPLEX enforceable against Old CPLEX in accordance with its
terms.
6. The Reincorporation Merger was effected in accordance with the
laws of the States of Texas and Nevada, and upon consummation of the
Reincorporation Merger, New CPLEX, by operation of law, succeeded to (i) all
business, assets and properties of Old CPLEX, including those to be sold,
transferred and conveyed to the respective Purchasers under the Agreements and
(ii) all of the other rights, benefits, obligations and liabilities of Old
CPLEX, including all rights, benefits, obligations and liabilities of Old CPLEX
created by or arising under the Purchase Agreement. By virtue and as a result
of the Reincorporation Merger, the Agreements became and are now valid and
binding obligations of New CPLEX enforceable against New CPLEX in accordance
with their terms.
7. All other corporate proceedings required to be taken on the
part of the Seller to authorize it to enter into and carry out its obligations
under the each of the Transaction Documents have been duly and properly taken.
8. The respective Conveyance Documents delivered by the Seller and
the respective Shareholders to the respective Purchasers have been duly
authorized, executed and delivered, are valid and binding obligations of the
Seller and the respective Shareholders in accordance with their respective
terms, and effectively vest in the respective Purchasers all right, title and
interest of the Seller in and to the assets, properties, rights and business of
the Seller purported to be assigned, transferred and conveyed thereby (it being
understood that we express no opinion as to the Seller's title to any such
assets, properties, rights and business), except that (i) we express no opinion
as to the validity or effectiveness of any assignment by the Seller of any
of its rights under any contract, license or agreement identified in Schedule
2.6 to the Purchase Agreement and with respect to which no consent to
assignment has been obtained from the other party or parties thereto and (ii)
as to Conveyance Documents assigning Seller Registered Intellectual Property to
a Purchaser, the effectiveness thereof is or may be subject to the filing
thereof with the United States Copyright Office, the United States Patent and
Trademark Office, or their respective equivalents in any relevant foreign
jurisdiction.
<PAGE> 193
ILOG S.A.
ILOG, Inc.
August __, 1997
Page 3
9. Assuming the legal capacity of the respective Shareholders, the
Purchase Agreement is valid and binding obligation of the respective
Shareholders enforceable against them in accordance with their terms.
10. Neither the execution and delivery by the Seller or the
Shareholders of any of the Transaction Documents or the consummation of the
transactions contemplated thereby nor compliance with or fulfillment of the
terms, conditions and provisions thereof will (i) violate, conflict with,
result in a breach of the terms, conditions or provisions of, or constitute a
default, an event of default or an event creating rights of acceleration,
termination or cancellation or loss of rights under (a) the Articles of
Incorporation or Bylaws of the Seller, (b) to our knowledge, any material note,
instrument, agreement, mortgage, lease, license, franchise, permit or other
authorization, right, restriction or obligation to which the Seller or any
Shareholder is a party or to which its properties are subject or by which the
Seller or any Shareholder is bound (except in the case of any contract, license
or agreement identified on Schedule 2.6 to the Purchase Agreement and with
respect to which no consent to assignment has been obtained form the other
party or parties thereto), (c) any court order known to us to which the Seller
or any Shareholder is a party or by which the Seller or any Shareholder is
bound or (d) to our knowledge, any requirements of law known to us affecting
the Seller or any Shareholder or (ii) to our knowledge, require the approval,
consent (except as set forth in Schedule 2.6 to the Purchase Agreement),
authorization or act of, or the making by the Seller or any Shareholder of any
declaration, filing or registration with any persons.
11. To our knowledge, there are no claims, actions, suits,
investigations or proceedings, pending or threatened against the Seller or, to
the extent related to the Transaction Documents, against any Shareholder or
questioning the validity of any of the Transaction Documents or the right of
the Seller or any Shareholder to enter into any of the Transaction Documents,
or to consummate the transactions contemplated thereby, at law or equity, or
before any governmental department, commission, board, bureau, agency or
instrumentality, domestic or foreign.
12. To our knowledge and except as disclosed in the Transaction
Documents, the Seller was not, immediately prior to the Closing, and, as a
result of the execution and delivery of the Transaction Documents or the
performance of Seller's obligations thereunder will not be, in violation of any
license, sublicense or other agreement relating to the Seller Intellectual
Property (except in the case of any contract, license or agreement identified
on Schedule 2.6 to the Purchase Agreement and with respect to which no consent
to assignment has been obtained form the other party or parties thereto). We
know of no facts that would render any of the Seller Intellectual Property
invalid in the hands of the Purchasers.
<PAGE> 194
ILOG S.A.
ILOG, Inc.
August __, 1997
Page 7
13. To our knowledge, no claims with respect to any Seller
Intellectual Property have been asserted or threatened by any person, nor do we
know of any grounds for any claims now or in the future (i) to the effect that
the Business as currently conducted infringes on or misappropriates any
Intellectual Property in which a third party has any rights or (ii) challenging
the ownership, validity or effectiveness of any of the Seller Intellectual
Property. To our knowledge, no Seller Intellectual Property is subject to (i)
Encumbrance or (ii) any outstanding order, judgment, decree, stipulation or
agreement restricting in any manner the licensing or exploitation thereof.
14. Assuming the legal capacity of Robert Bixby, the CPLEX License
Agreement is a valid and binding obligation of Mr. Bixby in accordance with its
terms and effectively vests in CPLEX all right, title and interest of Mr. Bixby
in and to the CPLEX Software (as that term is defined in the CPLEX License
Agreement) purported to be assigned, transferred and conveyed thereby (it being
understood that we express no opinion as to Mr. Bixby's title to or rights in
the CPLEX Software).
This opinion is subject to and qualified in all respects by the
following:
(i) The enforceability of any document to which the Seller
or any Shareholder is a party may be limited by (i) bankruptcy, insolvency,
reorganization, moratorium and similar laws from time to time in effect and
affecting creditors' rights or the collection of obligations generally,
including, without limitation, laws generally defining and restricting
fraudulent conveyances, (ii) principles of equity, (iii) principles of public
policy, and (iv) requirements of commercial reasonableness and good faith;
provided, however, any of the limitations described in subparts (iii) and (iv)
of this paragraph will not, in our opinion, prohibit any party from the
ultimate realization of the practical benefits conferred by the document in
question.
(ii) We express no opinion as to the enforceability of the
indemnity and contribution provisions contained in the Registration Agreement
referred to in Section 6.11 of the Purchase Agreement.
(iii) We express no opinion as to the enforceability of any
choice of law provision applicable to issues under the Agreements or any of the
other Transaction Documents which concern the relative rights of the Seller and
the Shareholders, which rights may be governed by the corporate law of the
State of Nevada.
(iv) This opinion letter is limited to the matters expressly
stated herein, and no opinion other than the matters so expressly stated is
implied or may be inferred.
<PAGE> 195
ILOG S.A.
ILOG, Inc.
August __, 1997
Page 8
include constructive inquiry or imputed knowledge. We advise you that we have
made no independent investigation of the affairs of the Seller or the
Shareholders. We also have made no independent search of the records of any
judicial authority or governmental agency as to the existence of any actions,
suits, investigations or proceedings, provided we advise you that we have no
knowledge of any judgments that have been entered against the Seller or any
Shareholder.
These opinions expressed herein are limited to the United States
federal law, the General Corporation Law of Delaware, the Nevada Business
Corporation Act, and laws of the State of Texas, all as now in effect, and
references herein to any law, statute, rule, regulation, court, administrative
body or governmental body are to such as exist thereunder. We disclaim any
responsibility to inform you of any change thereto after the date hereof. No
opinion is expressed as to any matter that may be governed by the laws of
another jurisdiction or as to any laws of the States of Nevada or Delaware
other than those specifically referred to above. As to all matters involving
the [Business Corporation Act] of Nevada, we have, with your permission, relied
exclusively on the opinion of __________________________, a copy of which has
been delivered to you, and we believe that you are justified in relying
thereon.
This opinion is delivered to you at the request of the Seller and the
Shareholders in connection with the Agreements and is not to be used for any
purpose other than in consummating the transactions described in the
Agreements. This opinion may not be relied upon, circulated, quoted, in whole
or in part, or otherwise referred to in any report or document or furnished to
any other person without our prior written consent.
Very truly yours,
PORTER & HEDGES, L.L.P.
<PAGE> 196
EXHIBIT M
STOCK OPTION GRANT AND AGREEMENT
<PAGE> 197
ILOG S.A.
1996 STOCK OPTION GRANT AGREEMENT
PART I
NOTICE OF STOCK OPTION GRANT
Mr./Ms.
------------------
You have been granted an Option to subscribe Shares of the
Company, subject to the terms and conditions of the 1996 Stock Option Plan, as
amended (the "Plan"), and this Option Agreement. Unless otherwise defined
herein, the terms defined in the Plan shall have the same defined meanings in
this Option Agreement.
Grant Number: SO96/97/
Date of Grant: August ___, 1997
Vesting Commencement Date: August ___, 1997
Vesting period: Four years
Share Per Value: FF 4.00
Exercise Price per Share: FF
Total Number of Shares Granted:
Total Exercise Price: FF
Type of Option: Incentive Stock Option
Term/Expiration Date: Ten Years
<PAGE> 198
VESTING SCHEDULE:
This Option may be exercised, in whole or in part, in
accordance with the following schedule:
25% of the Shares subject to the Option shall vest twelve
months after the Vesting Commencement Date, and 1/48 of the Shares subject to
the Option shall vest each month thereafter.
Except as may be provided in that certain Employment Agreement
by and between Optionee and ILOG, Inc. dated as of August 20, 1997 (the
"Employment Agreement"), vesting shall continue only during Optionee's
Continuous Status as a Beneficiary.
TERMINATION PERIOD:
Except as provided in the Employment Agreement, this Option
may be exercised for ninety (90) days after termination of the Optionee's
employment or term of office with the Company or an Affiliated Company as the
case may be. Upon the Death or Disability of the Optionee, this Option may be
exercised for such longer period as provided in the Plan or the Employment
Agreement. Save as provided in the Plan, in no event shall this Option be
exercised later than the Term/Expiration Date as provided above.
By his signature and the signature of the Company's
representative below, the Optionee and the Company agree that this Option is
granted under and, except to the extent inconsistent with the Employment
Agreement, governed by the terms and conditions of the Plan and this Option
Agreement. The Optionee has reviewed the Plan and this Option Agreement in their
entirety, has had the opportunity to obtain advice of counsel prior to executing
this Option Agreement and fully understands all provisions of the Plan and
Option Agreement. The Optionee hereby agrees to accept as binding, conclusive
and final all decisions or interpretations of the Administrator upon any
questions relating to the Plan and Option Agreement which are not governed by
the Employment Agreement. The Optionee further agrees to notify the Company upon
any change in the residence address indicated below.
The Company and the Optionee recognize that the Plan has been
prepared both in the French and the English language. The French version is the
version that binds the parties, notwithstanding this, the English version
represents an acceptable translation and, consequently, no official translation
will be required for the interpretation of this agreement.
OPTIONEE: ILOG S.A.
- -------------------------------
Signature By:
Print Name Title: CEO
- -------------------------------
Residence Address
- -------------------------------
-2-
<PAGE> 199
ILOG S. A.
1996 STOCK OPTION GRANT AGREEMENT
PART II
TERMS AND CONDITIONS
1. Grant of Option. The Plan Administrator of the Company hereby grants
to the Optionee named in the Notice of Grant attached as Part I of this
Agreement (the "Optionee"), an option (the "Option") to subscribe the number of
Shares, as set forth in the Notice of Grant, at the exercise price per Share set
forth in the Notice of Grant (the "Exercise Price"), subject to the terms and
conditions of the 1996 Stock Option Plan, as amended, which is incorporated
herein by reference. In the event of a conflict between the terms and conditions
of the Plan and the terms and conditions of this Option Agreement, the terms and
conditions of the Plan shall prevail.
If designated in the Notice of Grant as an Incentive Stock
Option, this Option is intended to qualify as an Incentive Stock Option under
Section 422 of the Code. However, if this Option is intended to be an Incentive
Stock Option, to the extent that it exceeds the $100,000 rule of Code Section
422(d) it shall be treated as a Non-statutory Stock Option.
2. Exercise of Option.
(a) Right to Exercise. This Option is exercisable during its term in
accordance with the Vesting Schedule set out in the Notice of Grant and the
applicable provisions of the Plan and this Option Agreement. In the event of
Optionee's death, disability or other termination of Optionee's employment or
term of office, the exercisability of the Option is governed by the applicable
provisions of the Plan and this Option Agreement.
(b) Method of Exercise. This Option is exercisable by delivery of an
exercise notice, in the form attached hereto (the "Exercise Notice"), comprising
a share subscription form (bulletin de souscription) which shall state the
election to exercise the Option, the number of Shares in respect of which the
Option is being exercised (the "Exercised Shares"), and such other
representations and agreements as may be required by the Company pursuant to the
provisions of the Plan. The Exercise Notice shall be signed by the Optionee and
shall be delivered in person or by certified mail to the Company or its
designated representative or by facsimile message to be immediately confirmed by
certified mail to the Company. The Exercise Notice shall be accompanied by
payment of the aggregate Exercise Price as to all Exercised Shares. This Option
shall be deemed to be exercised upon receipt by the Company of such fully
executed Exercise Notice accompanied by such aggregate Exercise Price.
-2-
<PAGE> 200
No Shares shall be issued pursuant to the exercise of this
Option unless such issuance and exercise complies with all relevant provisions
of law as set out under Section 14(a) of the Plan.
Upon the issuance of the Shares, the Optionee shall be
entitled to receive such Shares in the form of American Depositary Shares by
completing and signing the appropriate box of the Exercise Notice attached
hereto.
3. Method of Payment. Payment of the aggregate Exercise Price shall be
by any of the following, or a combination thereof, at the election of the
Optionee:
(1) wire transfer;
(2) check;
(3) delivery of a properly executed notice together with
such other documentation as the Administrator and the broker,
if applicable, shall require to effect exercise of the Option
and delivery to the Company of the sale or loan proceeds
required to pay the exercise price; or
(4) any combination of the foregoing methods of payment.
4. Non-Transferability of Option. This Option may not be transferred in
any manner otherwise than by will or by the laws of descent or distribution and
may be exercised during the lifetime of the Optionee only by the Optionee. The
terms of the Plan and this Option Agreement shall be binding upon the executors,
administrators, heirs, successors and assigns of the Optionee.
5. Terms of Option. Subject as provided in the Plan, this Option may be
exercised only within the term set out in the Notice of Grant, and may be
exercised during such term only in accordance with the Plan and the terms of
this Option Agreement.
6. Entire Agreement; Governing Law. The Plan is incorporated herein by
reference. The Plan, this Option Agreement and the Employment Agreement
constitute the entire agreement of the parties with respect to the subject
matter hereof and supersede in their entirety all prior undertakings and
agreements of the Company and Optionee with respect to the subject matter
hereof, and may not be modified adversely to the Optionee's interest except by
means of a writing signed by the Company and Optionee. In the event of any
conflict between the provisions of this Option Agreement and the provisions of
the Employment Agreement, the Employment Agreement shall, to the extent of such
conflict, control. This Option Agreement is governed by the laws of the Republic
of France.
Any claim or dispute arising under the Plan or this Agreement shall be subject
to the exclusive jurisdiction of the Tribunal de Grande Instance of Creteil.
-3-
<PAGE> 201
CONSENT OF SPOUSE
(TO BE SIGNED BY RESIDENT OF CALIFORNIA AND OTHER COMMUNITY PROPERTY STATES)
The undersigned spouse of Optionee has read and hereby
approves the terms and conditions of the Plan and this Option Agreement. In
consideration of the Company's granting his or her spouse the right to subscribe
Shares as set forth in the Plan and this Option Agreement, the undersigned
hereby agrees to be irrevocably bound by the terms and conditions of the Plan
and this Option Agreement and further agrees that any community property
interest shall be similarly bound. The undersigned hereby appoints the
undersigned's spouse as attorney-in-fact for the undersigned with respect to any
amendment or exercise of rights under the Plan or this Option Agreement.
---------------------------------------
Spouse of Optionee
-4-
<PAGE> 202
EXHIBIT A
ILOG S.A.
SOCIETE ANONYME HAVING A SHARE CAPITAL OF 24,798,780 FRANCS
REGISTERED OFFICE: []
1996 STOCK OPTION PLAN
EXERCISE NOTICE
(SHARE SUBSCRIPTION FORM)
ILOG S.A.
[ ]
Date:
Attention:
1. Exercise of Option. Effective as of today, ________________ , 199_,
the undersigned hereby elects to subscribe (_____________ ) shares (the
"Shares") of the Common Stock of ILOG S.A. (the "Company") under and pursuant to
the Company's 1996 Stock Option Plan (the "Plan") adopted by the Board of
Directors on May 30, 1996, as amended and the Stock Option Agreement dated ,
199_, (the "Option Agreement"). The subscription price for the Shares shall be
FF ____________ , as required by the Option Agreement.
2. Delivery of Payment. Purchaser herewith delivers to the Company the
full subscription price for the Shares.
3. Representation of Optionee. The Optionee acknowledges that Optionee
has received, read and understood the Plan and the Option Agreement and agrees
to abide by and be bound by their terms and conditions.
4. Rights as Shareholder. Until the issuance (as evidenced by the
appropriate entry on the books of the Company) of the Shares, the Optionee shall
have, as an Optionee, no right to vote or receive dividends or any other rights
as a shareholder shall exist with respect to the Optioned Stock, except those
the Optionee may have as a shareholder of the Company. No adjustment will be
made
<PAGE> 203
for rights in respect of which the record date is prior to the issuance date for
the Shares, except as provided in Section 11 of the Plan.
5. Tax Consultation. The Optionee understands that Optionee may suffer
adverse tax consequences as a result of Optionee's subscription or disposition
of the Shares. Optionee represents that Optionee has consulted with any tax
consultants Optionee deems advisable in connection with the subscription or
disposition of the Shares. The Optionee is not relying on the Company for any
tax advice.
6. Entire Agreement; Governing Law. The Plan and Option Agreement are
incorporated herein by reference. Reference is made to that certain Employment
Agreement by and between Optionee and ILOG, Inc. dated as of August __, 1997
(the "Employment Agreement"). This Exercise Notice, the Plan the Option
Agreement and the Employment Agreement constitute the entire agreement of the
parties with respect to the subject matter hereof and supersede in their
entirety all prior undertakings and agreements of the Company and Optionee with
respect to the subject matter hereof, and may not be modified adversely to the
Optionee's interest except by means of a writing signed by the Company and
Purchaser. In the event of any conflict between the provisions of this Exercise
Notice and the provisions of the Employment Agreement, the Employment Agreement
shall, to the extent of such conflict, control. This Exercise Notice is governed
by the laws of the Republic of France.
This Exercise Notice is delivered in two originals, one of which shall be
returned to the Optionee.
Submitted by: Accepted by:
OPTIONEE(*) ILOG S.A.
- -------------------------------------------
Signature by:
- ------------------------------------------- Its: CEO
Print Name
ADDRESS: ADDRESS:
- ------------------------------------------- ILOG S.A.
- ---------------------------
(*) The signature of the Optionee must be preceded by the following
manuscript mention "accepted for formal and irrevocable subscription of
________________ Shares."
-2-
<PAGE> 204
EXHIBIT N
SELLER EMPLOYEE OPTIONS
<PAGE> 205
EXHIBIT N
Seller Employee Options
<TABLE>
<CAPTION>
Option allocation for Seller Employees:
<S> <C>
Mary Fenelon 42,000
Lorrie Harlem 28,000
Ed Kotz 72,000
Irv Lustig 75,000
Wendy Ferris 10,000
Rich Guy 20,000
John Gregory 15,000
Larry Hunt 20,000
Roland Wunderling 15,000
Terry Stallman 3,000
-------
Total: 300,000
</TABLE>
<PAGE> 206
EXHIBIT O
OPINION OF WILSON SONSINI GOODRICH & ROSATI, P.C.
<PAGE> 207
Exhibit O
[Form of WSGR Opinion]
Ladies and Gentlemen:
This opinion is furnished to you pursuant to Section 6.13 of that
certain Asset Purchase Agreement dated August 4, 1997 (the "Asset Purchase
Agreement") among ILOG S.A., a societe anonyme (the "Company"), ILOG, Inc, a
California Corporation (the "Subsidiary") (the Company and the Subsidiary,
collectively, the "Purchasers"), CPLEX Optimization, Inc., a Nevada corporation
("Old CPLEX"), and Todd Lowe, Janet Lowe and Robert Bixby (such individuals, the
"Shareholders"). Capitalized terms used herein shall have the same meanings
given to them in the Asset Purchase Agreement unless otherwise defined herein.
The term "Seller" as used herein shall refer to (i) Old CPLEX, in respect of and
at all times up to the time of consummation of the statutory merger (the
"Reincorporation Merger") pursuant to which Old CPLEX merged with and into CPLEX
Optimization, Inc., a Nevada corporation ("New CPLEX"), and (ii) New CPLEX, in
respect of and at all time from and after the time of consummation of the
Reincorporation Merger.
We have acted as U.S. counsel for the Company and the Subsidiary in
connection with the negotiation, execution and delivery of, and the consummation
of the transactions contemplated in: the Asset Purchase Agreement; the Asset
Contribution Agreement (contrat d'apport) by and between the Company, the Seller
and the Shareholders (the "Contribution Agreement"); and the Employment
Agreement of each Shareholder by and between such Shareholder and the Subsidiary
(the "Employment Agreements"). In connection with the employment of the
Shareholders by the Subsidiary, the Employment Agreements provide that the
Company will grant each Employee an option to purchase capital stock of the
Company (the "Options"). The Asset Purchase Agreement and the Contribution
Agreement are sometimes referred to collectively herein as the "Purchase
Agreements." The Purchase Agreements, the Employment Agreements, the Options and
the Promissory Notes are sometimes referred to collectively herein as the
"Transaction Documents." As such counsel, we have made such legal and factual
examinations and inquiries as we have deemed advisable or necessary for the
purpose of rendering this opinion and we have examined originals, certified
copies, or copies otherwise identified to us as being true copies of the
originals, of the following:
(a) The Articles of Incorporation of Subsidiary as in effect on
the date hereof;
(b) The Bylaws of the Subsidiary as in effect on the date hereof;
(c) Minutes of the meetings of the Boards of Directors of the
Company and Subsidiary with respect to the transactions referred to in this
opinion; and
(d) the Purchase Agreement, an English translation of the Contribution
Agreement, and each of the Employment Agreements.
<PAGE> 208
In addition, we have obtained from public officials and from officers
of the Company and of the Subsidiary such other certificates and assurances, and
we have examined such corporate records, other documents and questions of law as
we have considered necessary or appropriate for the purpose of rendering this
opinion.
In connection with such examination, we have assumed the genuineness of
all signatures on original documents, the authenticity of all documents
submitted to us as originals, the conformity to originals of all documents
submitted to us as copies thereof and, except as specifically covered in the
opinions set forth below, the due execution of all documents where due execution
and delivery are a prerequisite to effectiveness thereof.
In addition, we have assumed that each Transaction Document and each
instrument or agreement to be delivered thereunder has been duly authorized,
executed and delivered by all parties or signatories thereto (other than the
Company and the Subsidiary) and that the representations and warranties as to
factual matters made by the Company, the Subsidiary, the Seller and each of the
Shareholders in each of the Transaction Documents and pursuant thereto are
correct and complete. We have no reason to believe that we are not justified in
relying upon such representations and warranties.
As used in this opinion, the expressions "to our knowledge," "known to
us" and similar phrases with reference to matters of fact mean that, after an
examination of documents made available to us by the Company, and after
inquiries of officers of the Company, but without any further independent
factual investigation, we find no reason to believe that the opinions expressed
herein are factually incorrect. Further, the expressions "to our knowledge",
"known to us" and similar phrases with reference to matters of fact refer to the
current actual knowledge of the attorneys currently practicing in this firm who
have rendered legal advice to the Company in connection with the negotiation and
the preparation of one or more of the Transaction Documents. Except to the
extent expressly set forth herein or as we otherwise believe to be necessary to
our opinion, we have not undertaken any independent investigation to determine
the existence or absence of any fact, and no inference as to our knowledge of
the existence or absence of any fact should be drawn from our representation of
the Company or the rendering of the opinions set forth below.
The opinions hereinafter expressed are subject to the following
qualifications:
(i) We express no opinion as to the effect of
bankruptcy, insolvency, reorganization, arrangement, liquidation,
conservatorship, readjustment of debt, moratorium and other similar laws
relating to or affecting the rights of creditors;
2
<PAGE> 209
(ii) We express no opinion as to the effect of rules
of law governing specific performance, injunctive relief and other equitable
remedies (regardless of whether any such remedy is considered in a proceeding at
law or in equity);
(iii) We express no opinion as to the effect of
general principles of equity and similar principles, including, without
limitation, concepts of materiality, reasonableness, unconscionability, good
faith and fair dealing, and the effect of public policy; and
(iv) We express no opinion as to the enforceability
of any provision of any of the Transaction Documents relating to indemnification
or contribution to the extent that such provision may be subject to limitations
of public policy and the effect of applicable statutes and judicial decisions.
We are licensed to practice law only in the State of
California. The opinions expressed herein are limited in all respects to
existing laws of the State of California, the General Corporation Law of
Delaware and applicable federal laws of the United States. We have made no
inquiry into, and express no opinion with respect to the statutes, regulations,
treaties or common laws of France or any other nation, state or jurisdiction, or
the effect on the transactions contemplated in the Transaction Documents of
non-compliance under any such statutes, regula tions, treaties or common laws.
Based upon and subject to the foregoing, we are of the opinion that:
1. The Subsidiary has been duly incorporated and is validly existing as a
corporation in good standing under the laws of California, is duly qualified to
do business and is in good standing as a foreign corporation in each
jurisdiction in which its ownership or lease of property or the conduct of its
business requires such qualification, except for those failures to be so
qualified or in good standing which will not in the aggregate have a material
adverse effect on the Company and its subsidiaries taken as a whole;
2. The Subsidiary has requisite corporate power and authority to execute,
deliver and perform the Transaction Documents to which it is a party. The
execution, delivery and performance of the Transaction Documents to which the
Subsidiary is a party has been duly authorized and approved by all necessary
corporate action and no other corporate proceedings on the part of the
Subsidiary are necessary to authorize such Transaction Documents or the
transactions contemplated thereby.
3. To our knowledge, there are no legal or governmental proceedings pending to
which the Company or any of its subsidiaries is a party or of which any property
or assets of the Company or any of its subsidiaries is the subject which, if
determined adversely to the Company or any of its subsidiaries, could have a
material adverse effect on the Company and its subsidiaries taken as
3
<PAGE> 210
a whole, and to our knowledge, no such proceedings are threatened or
contemplated by governmental authorities or other third parties;
4. The issuance and delivery of the Consideration Shares and the Promissory
Notes by the Company to the Seller at the Closing, the payment of the Initial
Cash Price by the Subsidiary and the Company to the Seller at the Closing and
the execution and delivery of the other Transaction Documents by the Company and
the Subsidiary will not result in a breach or violation of any of the terms or
provisions of or constitute a default (or an event that with notice or lapse of
time, or both, would constitute a default) under the Subsidiary's Articles of
Incorporation or By-Laws or, to our knowledge, any indenture, mortgage, deed of
trust, note agreement, lease, franchise, permit, material contract or license or
other agreement, instrument or obligation known to us to which either Purchaser
is a party or by which either Purchaser or any of its respective properties is
or may be bound, or, to our knowledge, any law, order, rule, regulation,
judgment or decree known to us of any court or governmental agency or body
having jurisdiction over either Purchaser or any of its respective properties
or, to our knowledge, result in the creation or imposition of a lien, charge or
encumbrance upon any property or assets of the either Purchaser;
5. To our knowledge, no consent, approval, authorization, order, registration,
designation, declaration, filing, qualification, license or permit of any United
States court or any United States public, governmental administrative or
regulatory agency or body is required for the issuance and delivery of the
Consideration Shares or the Promissory Notes, for the execution, delivery and
performance of any of the Transaction Documents or for the consummation by the
Company and/or the Subsidiary of the transactions contemplated thereby, except
such as may be required under the Securities Act or the securities or "Blue Sky"
laws of applicable jurisdictions in connection with the issuance of the
Consideration Shares to Seller;
6. The Subsidiary is not in violation of its Articles of Incorporation or
Bylaws, or to our knowledge, in breach of or default with respect to any
provision of any agreement, mortgage, deed of trust, lease, franchise, license,
indenture, permit or other instrument known to us which the Subsidiary is a
party or by which it or any of its properties may be bound or affected, except
where such default would not result in a material adverse effect on the Company
and its subsidiaries taken as a whole, and, to our knowledge the Subsidiary is
in compliance with all laws, rules, regulations, judgments, decrees, orders and
statutes of any court or jurisdiction to which they are subject, except where
noncompliance would not have a material adverse effect on the Company and its
subsidiaries taken as a whole;
7. Each Transaction Document to which Subsidiary is a party has been duly
authorized, executed and delivered by Subsidiary and, assuming the valid
authorization, execution and delivery of each such Transaction Document by the
Company, the Seller and the Shareholders, is a legal, valid and binding
obligation of Subsidiary, enforceable against Subsidiary in accordance with its
respective terms;
4
<PAGE> 211
8. Assuming (i) that each Transaction Document to which the Company is a party
constitutes a valid and legally binding agreement as to matters of French law,
(ii) that neither any such Transaction Document nor any of the respective
transactions contemplated therein violates any provisions of French law, (iii)
that each such Transaction Document has been validly authorized, executed and
delivered by each of the Company, Seller and the Shareholders and (iv) that the
Company's statuts will not be violated by the Company's execution, delivery and
performance of any such Transaction Document or by the consummation of any of
the respective transactions contemplated thereby, then each such Transaction
Document is a legal, valid and binding obligation of the Company, enforceable
against the Company in accordance with its respective terms;
9. Subject to the accuracy of the representations of Seller and the Shareholders
in the Transaction Documents, the offer and issuance of the Consideration Shares
to Seller constitutes a transaction exempt from the registration requirements of
Section 5 of the Securities Act.
This opinion is furnished to you by us as U.S. counsel to the
Purchasers in connection with the Purchase Agreement and the transactions
contemplated thereby. This opinion may not be relied upon by you for any other
purpose or made available to or relied upon by any other person or entity for
any purpose without our prior written consent.
Very truly yours,
WILSON SONSINI GOODRICH & ROSATI
Professional Corporation
5
<PAGE> 212
EXHIBIT P
OPINION OF STIBBE SIMONT MONAHAN DUHOT & GIROUX
<PAGE> 213
EXHIBIT P
[FORM OF GIROUX OPINION]
Dear Sirs,
We have acted as French counsel to ILOG SA, a societe anonyme (the
"Company"), in relation to French law in connection with the negotiation,
execution of: (i) that certain Asset Purchase Agreement dated August 4, 1997
(the "Purchase Agreement") by and among the Company, ILOG, Inc., a wholly owned
subsidiary of the Company (the "Subsidiary"), CPLEX Optimization, Inc.
("Seller"), and Todd Lowe, Janet Lowe and Robert Bixby (such three individuals,
the "Shareholders") and (ii) that certain Asset Contribution Agreement (contrat
d'apport) by and between the Company and the Seller and each Shareholder (the
"Contribution Agreement") and in connection with the consummation of the
transactions contemplated by the Purchase Agreement and the Contribution
Agreement (the Purchase Agreement and the Contribution Agreements, together, the
"Agreements"). This opinion is being furnished pursuant to Section __ of the
Purchase Agreement. All defined terms not defined herein shall, unless the
context otherwise requires, have the meanings ascribed to them in the Purchase
Agreement.
I. DOCUMENTS
For purposes of this opinion, we have examined the following documents:
1. a certified copy of the statuts of the Company adopted on October
17, 1996 and an extract (Form K-bis) of the Registre du Commerce et des Societes
of Creteil relating to the Company dated _________, 1997;
2. a certificat de non-faillite from the Registre du Commerce et des
Societes of Creteil relating to the Company dated ________;
3. copies of corporate documents of the Company relative to issue of
stock and options; and
4. all other relevant corporate documents of the Company, including
without limitation a copy of the minutes of the extraordinary general meeting of
the shareholders of the Company held on August __, 1997, issuing the
Consideration Shares, a copy of the report of the Board of Directors and of the
statutory auditors of the Company for such shareholders' meeting;
5. each Agreement, the stock option agreements entered into by and
between the Company and each Shareholder (the "Options"), (together the
"Transaction Documents"); and
<PAGE> 214
6. such further documents and matters of law as we have considered
necessary or appropriate for the purposes of rendering this opinion.
II. ASSUMPTIONS
The opinions set out in this letter relate only to the laws of France
as in force at the date hereof and are based upon the following assumptions:
1. the genuineness of all signatures, stamps and seals, the
authenticity and completeness of all documents submitted to us as originals and
the completeness and conformity to the originals of all documents supplied to us
as certified or photostatic or faxed copies and the authenticity of the
originals of such documents;
2. the due authorization, execution and delivery of each of the
Transaction Documents by each of the parties thereto (except the Company) and
that performance thereof is within the capacity and powers of each of the
parties thereto (except the Company);
3. the absence of any other arrangement between any of the parties to
the Agreements which would modify or supersede any of the terms of any of the
said agreements;
4. the obligation of the Company contained in any Transaction Document
which is expressed to be or is in fact governed by the laws of the State of
Delaware are legal, valid, binding and enforceable obligations of the Company
under the laws referred to above.
II. OPINIONS.
The opinions set out in this letter relate only to French law. We have
made such examination of French law as in our judgment is necessary for the
purpose of this opinion. We do not, however, purport to be qualified to pass
upon, and we express no opinion herein as to the laws of any jurisdiction other
than those of France.
On the basis of such assumptions and subject to the reservations set
out below, we are of the opinion that:
1. The Company has been duly incorporated and is validly
existing as a corporation (societe anonyme) under the laws of the Republic of
France, with full power and authority (corporate and other) to conduct its
business as presently conducted and to enter into and perform its obligations
under the Transaction Documents;
2. The Company has an issued share capital as set forth in the
Transaction Documents, and all of the issued shares of capital stock of the
Company have been duly and validly issued and are fully paid; all of the
Consideration Shares to be issued by the Company to the Seller
<PAGE> 215
pursuant to the Transaction Documents have been duly and validly issued,
delivered and fully paid as provided in the Transaction Documents; and all of
the shares of capital stock issuable upon the exercise of the Options (such
share, the "Option Shares") to be granted by the Company to the Shareholders in
connection with their employment with the Subsidiary will, when issued in the
manner provided in the Options, be duly and validly issued, delivered and fully
paid. The Options and the Company's other outstanding options to purchase shares
(options de souscription d'actions) in the Company have been duly and validly
authorized by the shareholders of the Company;
3. There are no preemptive rights to subscribe (droit
preferentiel de souscription) for the Consideration Shares, nor are there any
restrictions upon the voting or transfer of any of the Consideration Shares
pursuant to the Company's statuts other than as provided by law;
4. The Company has full corporate power and authority to enter
into the Promissory Notes and each of the Transaction Documents and to perform
its obligations thereunder (including to issue and deliver the Consideration
Shares and the Option Shares, to pay the Initial Cash Payment and to issue and
deliver the Promissory Notes and the Options); when required under French law,
each Transaction Document has been duly and validly authorized, executed and
delivered by the Company. Assuming the provisions of the Purchase Agreement
concerning the Contribution Agreement and the Options are valid and legally
binding under Delaware law, (i) each of the Transaction Documents (x)
constitutes a valid and legally binding agreement as to the matters of French
law addressed therein and (y) does not violate any provisions of French law and
(ii) the performance of the Company's obligations under the Promissory Notes
will not violate any provision of French law;
5. No consent, approval, authorization, order, registration,
designation, declaration, filing, qualification, license or permit of any French
court or any French public, governmental, administrative or regulatory agency or
body or any other person is required for the issuance and delivery of the
Consideration Shares by the Company to the Seller upon the Closing, for the
execution or delivery and performance by the Company of the Transaction
Documents, for the issuance of the Option Shares pursuant to the Options or for
the consummation by the Company of the transactions contemplated by the
Transaction Documents; provided however that a [declaration/letter of
information] to the French Ministry of the Economy, Finance and Budget will have
to be [made/sent] on closing;
6. The choice of Delaware law to govern the Promissory Notes
and some of the Transaction Documents is, under the laws of France, a valid
choice of law and any final judgment for a sum of money against the Company in
relation to the Transaction Documents or the Promissory Notes rendered by a
competent United States Federal or State court in the city of San Jose,
California would be recognized and enforced by the French courts, except (a) in
original actions brought in French courts, certain questions of procedural law
and, in certain events, questions of public policy, would be governed by French
law, and (b) a judgment of a United States court may not be enforceable in a
French court if such enforcement would violate French public policy or be
inconsistent with French procedural law; and service of process effected in the
manner set forth in
<PAGE> 216
Section 11.6 of the Asset Purchase Agreement, assuming its validity under
Delaware law, will be effective, insofar as French law is concerned, to confer
valid personal jurisdiction over the Company.
The opinions expressed above are subject to the following reservations:
1. Where any party to a Transaction Document is vested with a
discretion, French law requires that such discretion is not abused;
2. Any enforcement against the Company may be limited by the provisions
of French law giving discretionary powers to the French courts such as the
discretion to limit or increase the amount of payments due under any penalty or
indemnity clause which, taking into consideration the respective positions of
the parties, is considered by such courts to be manifestly excessive or nominal,
and such as the discretion to grant a grace period of up to two years or to
reduce the rate of interest applicable to deferred payments;
3. We express no opinion as to the availability under French law or
before a French court of the enforcement of a performance obligation or any
other remedy other than those culminating in a judgment for the payment of
money;
4. This opinion is subject to the application of any applicable
bankruptcy, liquidation, winding-up, insolvency or similar laws affecting the
rights of creditors generally; and
5. Other than as expressly set forth above, no opinion is given hereby
in respect of the Transaction Documents, the rights and obligations which may
result therefrom, or the information contained therein or the measures taken or
able to be taken upon performance of the Transaction Documents other than
exclusively as to matters of French law.
We express no opinion as to any agreement, instrument or other document
other than as specified in this letter.
We are qualified to practice law in the Republic of France. We have
made no independent investigations of the laws of any jurisdiction other than
the laws in effect in the Republic of France as at the date hereof as a basis
for the opinions expressed herein. We do not express any opinion on the laws of
any jurisdiction other than the laws of the Republic of France.
This opinion is exclusively addressed to you, although copies may be
given to your legal advisers for information purposes. Accordingly, only you may
refer to the opinions expressed herein; this opinion may not be used for any
other purpose nor may it be communicated to any third party.
Very truly yours
<PAGE> 217
SCHEDULE 1.1(b)
FIXED ASSETS
<PAGE> 218
Schedule 1.1(b)
Seller's Fixed Assets
6/30/97
<TABLE>
<CAPTION>
Date E&Y Accum. E&Y
Description Acquired Cost Depreciation Dock Value
----------- -------- ------ ------------ ----------
<S> <C> <C> <C> <C>
Computer Hardware - Janet Lowe 11/2/89 7,125 7,125 0
Hard Disk for DP386/25 11/29/89 965 965 0
Software - The Programmers Shop 3/30/89 1,195 1,195 0
Software - System Enhancement As 7/18/89 50 50 0
Software - PharLap Run-Time Lic 8/22/89 556 556 0
Sparc 1 + Quota 7/17/90 15,594 15,594 0
US Robotics Modem 8/16/90 805 805 0
Surge Protector 9/28/90 41 41 0
Software - Word 4, Excel, On Cue 3/30/91 550 550 0
3 Modular Office Workstations 10/23/91 3,929 3,929 0
Memory Expansion for Compaq 20 2/1/91 466 466 0
Macintosh IIsi Computer 2/3/91 3,959 3,959 0
Gator Box - Network Hardware 6/15/91 1,498 1,498 0
Sun SparcII Unix Computer 7/12/91 13,481 13,481 0
PC Printer for Dell 1/30/92 209 209 0
Filing Cabinet 5/6/92 218 218 0
------ ------ -----
At 6/30/92 50,641 50,641 0
150 MB QIC Tape Drive 10/29/92 1,655 1,655 0
Sun PC NFS Software 11/16/92 1,569 1,569 0
Apurnix 1 GB Hard Drive 11/30/92 2,456 2,456 0
Watcom C Compiler 12/14/92 569 569 0
Purify Development 1/1/93 2,750 2,750 0
HP Memory 2/25/93 2,756 2,756 0
Rob Office Chair 2/25/93 536 465 71
Sun Spare 10 Update 4/15/93 10,782 10,782 0
Laser Printer 5/24/93 948 948 0
Sun Hard Drive 7/14/93 1,509 1,509 0
SGI Workstation 7/14/93 23,332 23,332 (0)
TI Laptop 7/20/93 3,579 3,579 0
Ethernet Adapter 7/30/93 290 290 0
PC NFS Software 7/30/93 354 354 0
Telabit T3000 Modem 8/31/93 635 635 (0)
R-Squared Modem 8/31/93 758 758 0
Dell Pentiun 1/13/94 4,580 4,580 0
Watcom Compiler 1/31/94 1,019 1,019 0
HQ Mac Due Dock 2/23/94 3,668 3,668 0
Dell 486 2/28/94 3,080 3,080 0
Visual Basic Compiler 2/28/94 419 419 0
Dell 466/SPS 4/29/94 4,590 4,590 0
HP Memory 6/15/94 2,507 2,507 0
FAX Machine 7/1/94 309 309 0
Office Chair 7/30/94 367 204 163
Power Mac 8/25/94 2,779 2,623 114
CD ROM 9/30/94 533 489 44
Laserjet Printer 1/17/95 2,933 2,363 570
Mac Ethernet Network 1/31/95 1,710 1,378 ?32
Parasoft Software 4/3/95 1,710 1,148 382
Power Mac 4/5/95 2,530 1,802 601
Apple Laserwriter 4/5/95 1,498 1,124 374
Microsoft Office 4/5/95 467 350 117
FAX Machine 4/10/95 285 214 71
Dell Pentium 5/2/95 3,521 2,543 978
Sharp Laser FAX 5/2/95 800 578 27?
Office Furniture 5/2/95 2,500 1,083 1,417
Laser Printer 5/16/95 855 594 261
Phone System 5/17/95 4,203 2,919 1,284
</TABLE>
Note: Accumulated depreciation per FY was estimated based on the straight-line
method over a useful life of 3 years for computer equipment and purchased
software, and a useful life of 5 years for furniture and other equipment. This
is consistent with the depreciation method used by ILOG.
<PAGE> 219
<TABLE>
<S> <C> <C> <C> <C>
Office Furniture 5/25/95 6.258 2.608 3.650
Power Mac/Monitor 6/2/95 6.137 4.262 1.875
HON Chairs 6/26/95 1.251 500 751
FAX Modem 6/30/95 241 161 80
Tape Backup Unit 8/2/95 580 371 209
Portrait Monitors 10/1/95 1,268 740 528
Chairs, Desk Pedestal 10/16/95 526 175 351
Claridge White Board/Panel 10/16/95 499 166 333
Guest Chairs 12/4/95 336 106 230
PC Monitor 12/28/95 2,117 1,058 1,058
Pentium XP65 2/16/96 6,692 2,974 3,718
Modem 2/29/96 408 181 227
Hard Drive 2/29/96 577 256 321
DEC Alpha 3000 3/18/96 7,500 3,125 4,375
DEC Monitor 4/17/96 348 135 213
DEC Alpha Kit 5/2/96 4,818 1,874 2,944
PC 5100 6XM 5/15/96 3,769 1,466 2,303
Windows NT Software 5/15/96 317 123 194
IBM Notepad PC 5/21/96 8,600 3,106 5,494
Tape Backup 6/17/96 272 91 181
------- ------- -------
153,648 117,468 36,080
At 6/30/96 204,189 168,109 36,080
Office Chairs 7/16/96 1,209 222 987
Macintosh 8/5/96 999 305 697
Laser Printer 8/5/96 2,113 646 1,467
Macintosh 8/5/96 3,339 1,020 2,319
Pentium Pro 200 8/30/96 4,479 1,244 3,235
Falcon Hard Drive 8/30/95 843 234 609
Falcon Hard Drive 9/18/96 834 208 626
VSPS10 9/18/96 1,805 451 1,354
Video Projector 9/18/96 3,924 981 2,943
Monitor 9/30/96 1,750 438 1,312
Technical Furniture 9/30/96 3,890 584 3,306
Hard Drive 10/16/96 357 79 278
2 Phones 10/16/96 402 89 313
Monitor 10/31/96 1,867 415 1,452
Sun Ultra 12/12/96 10,937 2,127 8,810
Quark Software 12/27/96 667 111 556
Macintosh 12/27/96 1,790 298 1,492
Modular Office Furniture 1/27/97 5,385 449 4,936
4 Oak Bookshelves TV 1/31/97 1,232 103 1,129
Panorama Server SWT 2/19/97 869 97 772
Conference Room Table 2/28/97 2,830 189 2,641
Alder Conference Room Chairs 2/28/97 2,675 178 2,497
Roland Horne PC 3/1/97 3,056 340 2,716
RPG Monitor 3/28/97 660 55 605
Sun Solaris IRV NJ 4/1/97 1,716 143 1,573
Modular Office Furniture 4/15/97 9,970 498 9,472
BSD Server 5/29/97 1,270 35 1,235
Terry's Power Comp 5/29/97 2,082 58 2,024
Roland Office PC 5/29/97 4,725 131 4,594
REB Home Office Solaris System 6/16/97 5,533 0 5,533
------- ------- -------
83,208 11,728 71,480
------- ------- -------
TOTAL: 287,397 179,837 107,560
------- ------- -------
</TABLE>
Note: Accumulated depreciation per EY was estimated based on the straight-line
method over a useful life of 3 years for computer equipment and purchased
software, and a useful life of 5 years for furniture and other equipment. This
is consistent with the depreciation method used by ILOG.
<PAGE> 220
SCHEDULE 1.2
EXCLUDED ASSETS
<PAGE> 221
SCHEDULE 1.2
EXCLUDED ASSETS
* All royalties accrued through the close date under CPLEX Value Added Reseller
Agreements
* Prepaid rent from close date to end of August
* Apple Macintosh computer
* Apple LaserWriter IINT
* Apple 21" B&W Monitor
* Lunchroom refrigerator
* Employees' personal artwork (which is all artwork except three framed boating
posters)
* Hewlett Packard HP9000/715/100 computer system and peripherals -- loaned
* Sun Microsystems Ultra-2 computer system and peripherals -- loaned
* SGI Power Challenge computer system and peripherals -- loaned
* SGI Origin 200 computer system and peripherals -- see schedule 2.6 -- loan
non-assignable
* Sun Ultra 3000 computer and peripherals -- see schedule 2.6 -- loan
non-assignable
* DEC 4100 computer system and peripherals -- see schedule 2.6 -- loan
non-assignable
* All rights under all policies of insurance insuring the Seller or its
properties or operations (including all causes of action or claims arising
thereunder) and all short-rate refunds with respect thereto
* All claims of the Seller for any refund of taxes of any kind
* All rights of the Seller under the Asset Purchase Agreement
<PAGE> 222
SCHEDULE 1.3
ASSUMED LIABILITIES
(ASSUMED CONTRACTS)
<PAGE> 223
SCHEDULE 1.3
ASSUMED CONTRACTS
- - Sublease agreement between ASHLEY QUINN NELSON and Seller dated November 4,
1996 related to the lease of office space.
- - Equipment lease agreement between Hewlett Packard and Seller dated May 7,
1994 related to the lease of computer hardware.
- - Software License Agreement between American Telephone and Telegraph Company
and Seller effective June 1, 1992 related to AT&T Mathematical Programming
Languages and amendments and modifications to date. Assignable with consent.
See schedule 2.6.
- - Sublicensing Agreement between American Telephone and Telegraph Company
effective June 1, 1992 related to AT&T Mathematical Programming Languages
and amendments and modifications to date. Assignable with consent. See
schedule 2.6.
- - Exclusive License Agreement between Dr. Roy Marsten and Seller dated
January 4, 1993 related to the license of mathematical algorithms.
- - Buyout and Termination Agreement between Dr. Roy Marsten and Seller dated
July 25, 1997 related to the termination of the party's Exclusive License
Agreement.
- - Exclusive License Agreement between Dr. Dave Shanno and Seller dated
January 4, 1993 related to the license of mathematical algorithms.
- - Buyout and Termination Agreement between Dr. Dave Shanno and Seller dated
July 17, 1997 related to the termination of the party's Exclusive License
Agreement.
- - Agreement for Personal Services as Consult between Dr. Dave Shanno and Seller
dated July 17, 1997 related to technical design and development of
mathematical algorithms and computer software.
- - Exclusive License Agreement between Dr. Irvin Lustig and Seller dated
January 4, 1993 related to the license of mathematical algorithms.
- - Buyout and Termination Agreement between Dr. Irvin Lustig and Seller dated
July 15, 1997 related to the termination of the party's Exclusive License
Agreement.
<PAGE> 224
SCHEDULE 2.3
OBLIGATIONS WITH RESPECT TO CAPITAL STOCK
None.
<PAGE> 225
SCHEDULE 2.5
SECURITY INTERESTS, LIENS, ENCUMBRANCES, ETC.
None.
<PAGE> 226
SCHEDULE 2.6
REQUIRED CONSENTS & ABSENCE OF CONFLICTS
<PAGE> 227
SCHEDULE 2.6
REQUIRED CONSENTS
o Software License Agreement between American Telephone and Telegraph Company
and Seller effective June 1, 1992 related to AT&T Mathematical Programming
Languages and amendments and modifications to date.
o Sublicensing Agreement between American Telephone and Telegraph Company
effective June 1, 1992 related to AT&T Mathematical Programming Languages
and amendments and modifications to date.
o Loan of Products agreement between Digital Equipment Corporation and Seller
dated 1/30/97 related to the loan of a DEC 4100 computer system.
o Equipment loan agreement between Silicon Graphics and Seller dated March 10,
1997 related to loan of Origin 200 computer system.
o Equipment loan and software license agreement between Sun Microsystems and
Seller dated November 22, 1996 related to the loan of E3000 computer system.
<PAGE> 228
SCHEDULE 2.8(b)
SELLER'S LEASED REAL PROPERTY
<PAGE> 229
SCHEDULE 2.8(b)
SELLER'S LEASED REAL PROPERTY
o Office space known as Suite 200 located at the address 889 Alder, Incline
Village, NV 89450.
<PAGE> 230
SCHEDULE 2.8(c)
EQUIPMENT LOAN AND PORTING AGREEMENTS
<PAGE> 231
SCHEDULE 2.8(c)
EQUIPMENT LOAN AND PORTING AGREEMENT
o Loan of Products agreement between Digital Equipment Corporation and Seller
dated 1/30/97 related to the loan of a DEC 4100 computer system.
o Equipment loan agreement between Silicon Graphics and Seller dated March 10,
1997 related to loan of Origin 200 computer system.
o Equipment loan and software license agreement between Sun Microsystems and
Seller dated November 22, 1996 related to the loan of E3000 computer system.
o Porting Agreement between Silicon Graphics, Inc. and Seller dated February
22, 1995 related to the loan of equipment and porting of software.
<PAGE> 232
SCHEDULE 2.8(d)
Not Applicable.
<PAGE> 233
SCHEDULE 2.8(e)
RELATED PARTY SHAREHOLDERS
<PAGE> 234
Schedule 2.8(f)
Related Party Shareholdings
The Seller shareholders have an equity interest in Seller's customer Compass
Modeling Solutions, Inc. (Compass), Inc located in Reno Nevada as follows:
Todd A. Lowe 3000 shares (20% of issued)
Janet H. Lowe 3000 shares (20% of issued)
Robert E. Bixby 1,333 shares 98.9% of issued)
Compass Modeling Solutions was incorporated during September 20, 1994 in the
state of Nevada as an S corporation. Compass is a provider of math programming
model building consulting services and third party software products.
Compass has a Value Added Reseller Contract and Bilateral commissioning
agreement with Seller which in the last year has yielded revenues about
$200,000. These contracts cover all revenue received from Compass.
Compass has four employees and forecasts 1997 total revenues of about $800,000.
Todd A. Lowe is one of three Compass directors and receives no compensation his
directorship.
<PAGE> 235
SCHEDULE 2.9
SELLER REGISTERED INTELLECTUAL PROPERTY
<PAGE> 236
Schedule 2.9
Seller's Registered Intellectual Property
Property: Seller's source code* Sellers name - CPLEX
Type: Copyright Trademark
Where registered: US Copyright Office US Patent & Trademark Office
Registration Number: TXu 419-336 1790210
* Copyright last updated during 1992
<PAGE> 237
SCHEDULE 2.9(d)
THIRD PARTY RIGHTS TO SELLER INTELLECTUAL PROPERTY
<PAGE> 238
SCHEDULE 2.9(D)
INTELLECTUAL PROPERTY
* None.
<PAGE> 239
SCHEDULE 2.9(g)
SELLER INTELLECTUAL PROPERTY INDEMNITY OBLIGATIONS
<PAGE> 240
Schedule 2.9(g)
Specified License Agreements
The majority of Seller's licenses and license arrangements with third parties
have been performed under terms substantially the same as those in one of the
following standard contracts:
o CPLEX Optimization, Inc. Software License Agreement
o CPLEX Software Master License Agreement
o CPLEX Optimization Software License Agreement SLA0694
o CPLEX Optimization Software License Agreement DTRA1096
o CPLEX Optimization, Inc. Value Added Reseller Software License Agreement
o CPLEX Optimization Sublicensing Agreement
o CPLEX Optimization, Inc. Dealer Agreement
o CPLEX Software Nonexclusive Finder's Fee Agreement
o Academic CPLEX Software License Agreement
The following specific contracts of the Seller, identified by party and date,
are listed for purposes of section 2.9(g):
Value Added Reseller Agreements
PARTY DATE
ABB Simcon, Inc. March 10, 1995
Ad Opt Technologies July 24, 1997
Aeronomics Incorporated January 15, 1997
Algorithmics Inc. January 23, 1995
Athena Systems, Inc. June 15, 1997
Atlantec Inc. November 19, 1996
Bear Stearns & Co. Inc. May 1, 1989
Bechtel Corporation March 5, 1990
Bender Management Consultants Inc May 12, 1995
CAPS Logistics, Inc. October 11, 1996
Carmen Systems AB February 27, 1996
Chesapeake Decision Sciences September 1, 1989
Compass Modeling Solutions March 29, 1995
Cutting Edge Optimization July 28, 1997
Decision Dynamics, Inc. August 19, 1993
EDS/BEI July 24, 1995
EMA/EDS January 29, 1993
Cegelec ESCA Corporation April 28, 1997
Page 1
<PAGE> 241
Euro Decision S.A.R.L. April 16, 1993
GAMS Development Corporation October 19, 1994
Gerber Garment Technology February 24, 1997
GfAI September 9, 1987
GIRO inc August 19, 1993
Haverly Systems January 15, 1990
Henwood Energy October 27, 1995
HMS Energy May 1, 1997
i2 Technologies November 27, 1996
Intelligent Optimization, L.C. March 27, 1997
Interet July 17, 1991
InterTrans Logistics SA November 1, 1996
Ketek GmbH April 24, 1997
Landis & Gyr Systems, Inc. November 8, 1993
LCG Consulting January 31, 1992
Manugistics, Inc. September 19, 1996
Maximal Software, Inc. January 1, 1996
NewMetrics Corporation June 19, 1996
Paragon Decision Technology September 20, 1994
ProCom GmbH July 4, 1994
Propsys Inc. February 26, 1993
ProMIRA Software April 15, 1997
American Airlines Decision Technologies June 20, 1991
Siemens A.G. March 4, 1997
Tyecin Systems, Inc. December 19, 1995
Sublicensing Agreements
-----------------------
Acres International Limited September 6, 1996
ADATECH SA September 19, 1996
A.I. Systems November 9, 1996
CORE Management Systems May 8th, 1991
Harris GE Energy Systems January 29, 1997
Powel Data AS July 15, 1996
Dealer Finder Agreements
------------------------
Austries May 17, 1996
CAE Electronics July 9, 1993
Century Research Center Corp July 11, 1990
Page 2
<PAGE> 242
CHI Associados Ltda. March 24, 1995
CNC Cybernetic GmbH October 10, 1996
Delphi Systems July 6, 1993
Fourier Systems LTD January 1, 1993
Alexader Hipolito February 7, 1997
LINKS SA March 2, 1992
Meridian Systems June 14, 1995
MG Interational March 27, 1991
OPCOM April 11, 1995
ORGP Ltd. December 16, 1994
Optigroup, Ltd. October 5th 1995
Quinta Discplina April 28, 1997
SoftAS GmbH April 10, 1995
UDS Software May 9, 1997
End User Agreements not licensed under the standard contracts.
o Standard Terms and Conditions Applicable to License of Software between
CPLEX Optimization, Inc. and American Telephone and Telegraph Company
dated 7/30/91.
o CPLEX Optimization, Inc.-Amoco Corporation Software License Agreement dated
August 6, 1989.
o Limited Right To Copy Agreement between Seller and Bell Communications
Research, Inc. dated June 28, 1990.
o Modifications to the Software Master License Agreement between CPLEX
Optimization, Inc. and Kraft General Foods dated May 20, 1991.
o Software License Agreement between Seller and Lockheed Martin dated August
10, 1995.
o Addendum to CPLEX Optimization Software License Agreement SL0694 between
Seller and United Parcel Service General Services Co. dated September 14,
1994.
o Contracts between US Department of Defense and Seller of various dates.
Page 3
<PAGE> 243
SCHEDULE 2.9(i)
SELLER INTELLECTUAL PROPERTY AGREEMENT DISPUTES
<PAGE> 244
Schedule 2.9(i)
Seller Intellectual Property Agreement Disputes
Discrepancies in royalty payment amounts from Bechtel Corporation's PIMS
division were detected early this year. Based upon royalty reports there
appeared to be royalty payment shortfalls and past due payments. On April 16th,
1997 a letter was sent advising Bechtel of these potential issues. On May 2nd,
1997 David Geddes, VP of PIMS Products*, replied in a letter explaining
Bechtel's actions and expressing intent to comply with the terms of the VAR
contract. The parties have verbally agreed to update the Value Added Reseller
Agreement between them to clarify the terms and to add new license privileges.
Good faith negotiations are in progress.
*The PIMS Division of Bechtel had just been sold to AspenTech.
<PAGE> 245
SCHEDULE 2.10
SELLER'S CUSTOMER LIST
<PAGE> 246
Schedule 2.10
Seller's Significant Customer List
<TABLE>
<CAPTION>
Approx. Receipts
7/1/96 - 6/30/97
<S> <C>
AT&T $55,890
Algorithmics $128,300
AspenTech/Bechtel $125,430
Chesapeake Decision Sciences $359,680
Compass Modeling Systems $211,470
EDS $74,410
GAMS $99,160
Haverly $119,000
i2 Technologies $99,950
ITG $57,390
Lockheed Martin $53,330
Lucent Technologies $151,180
Manugistics $63,070
Numetrix $259,160
Paragon Decision Technology $60,450
The Sabre Group $123,500
United Airlines $247,610
</TABLE>
<PAGE> 247
SCHEDULE 2.15
COMPENSATION OF OFFICERS AND EMPLOYEES OF SELLER
<PAGE> 248
Schedule 2.15
Compensation of Officers and Employees of Seller
CURRENT EMPLOYEE COMPENSATION
<TABLE>
<CAPTION>
Employee Current Base Commission 1996 Bonus
- -------- ------------ ---------- ----------
<S> <C> <C> <C>
Mary Fenelon $32/hr 0 7,000
Wendy Ferris $25,400/yr 0 3,500
John Gregory $79,500/yr 0 5,000 (a)
Richard Guy $72,000/yr 28,500 (b) 10,000
Tessa Guy(c) $7/hr 0 0
Lorrie Harlem $35,040/yr 0 7,000
Larry Hunt $85,000/yr 0 6,000 (a)
Ed Klotz $75,000/yr 0 19,000
Irvin Lustig $81,400/yr 0 26,000
Terry Stallman $24,000/yr(d) 0 hired in '97
Roland Wunderling $67,500/yr(d) 0 hired in '97
</TABLE>
Salary payments are made on the 15th and last day of each month. Bonus payments
are at the discretion of management, and typically paid in late December.
(a) John Gregory and Larry Hunt were hired in mid-96; bonus amounts for '96
include a pro-rated adjustment for partial year employment.
(b) Richard Guy currently receives 1/2 his bonus as a draw in semi-monthly
salary payments; any remaining earned commission is paid quarterly.
(c) Tessa Guy is a part-time employee (several hours/week) who receives no
employee benefits (other than mandatory state insurances).
(d) Terry Stallman and Roland Wunderling currently receive a small additional
payment in lieu of receiving health insurance benefits.
OWNER/OFFICER COMPENSATION EARNED FOR THE PERIOD 7/1/96 - 6/30/97
<TABLE>
<CAPTION>
Salary Royalties Mgmt. Fees
------ --------- ----------
<S> <C> <C> <C>
Robert Bixby $15,000 $519,194 0
Janet Lowe $25,000 0 0
Todd Lowe (via
Lowe Technologies)* 0 0 $699,558
</TABLE>
* Lowe Technologies is owned 50% by Todd A. Lowe, and 50% by Janet H. Lowe.
<PAGE> 249
SCHEDULE 2.17
SELLER'S INSURANCE POLICIES
<PAGE> 250
Schedule 2.17
Seller's Insurance Polices
Company: Hartford Spectrum Business Insurance Policy
Policy #: 53 SBA EN1169
Expires: 6/15/98
Coverage: See attached certificate of insurance
<PAGE> 251
- --------------------------------------------------------------------------------
ACORD CERTIFICATE OF INSURANCE PAYMENT DATE
07/25/97
- --------------------------------------------------------------------------------
PRODUCER THIS CERTIFICATE IS ISSUED AS A MATTER
OF INFORMATION ONLY AND CONFERS NO
Mike Renath Insurance RIGHTS UPON THE CERTIFICATE HOLDER.
THIS CERTIFICATE DOES NOT AMEND,
951 Tahoe Blvd, Suite 4 EXTEND OR ALTER THE COVERAGE AFFORDED
Incline Village, NV 89451- BY THE POLICIES BELOW.
(702) 831-3132 ---------------------------------------
COMPANY
A ITT HARTFORD
- --------------------------------------------------------------------------------
INSURED COMPANY
B
CPLEX ---------------------------------------
889 ALDER DRIVE, SUITE 200 COMPANY
C
INCLINE VILLAGE NV 89451- ---------------------------------------
(702) 831-7744 COMPANY
D
- --------------------------------------------------------------------------------
CONFIRMATION
- --------------------------------------------------------------------------------
THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN
ISSUED TO THE INSURED NAME ABOVE FOR THE POLICY AS SO INDICATED.
NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER
DOCUMENT WITH RESPECT TO WHICH THE CERTIFICATE MAY BE ISSUED OR MAY
PERTAIN. THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT
TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN
MAY HAVE BEEN REDUCED BY PAID CLAIMS.
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
CO POLICY EFFECTIVE POLICY EXPIRATION
LTR TYPE OF BUSINESS POLICY NUMBER DATE (MM/DD/YY) DATE (MM/DD/YY) LIMITS
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
A GENERAL LIABILITY GENERAL AGGREGATE $2000000
----------------------------------
[X] COMMERCIAL GENERAL LIABILITY 53 SBA EM1169 06/15/97 06/15/98 PRODUCTS-COMP/OP AGG $2000000
----------------------------------
[ ][ ] CLAIMS MADE [X] OCCUR PERSONAL & ADV INJURY $1000000
----------------------------------
[ ] OWNERS & CONTRACTOR'S PROT EACH OCCURRENCE $1000000
----------------------------------
[ ] __________________________ PAC DAMAGE (Any one occ) $300000
----------------------------------
[ ] MED EXP (Any one person) $10000
- ------------------------------------------------------------------------------------------------------------------------------------
AUTOMOBILE LIABILITY / / / / COMBINED START LIMIT $
----------------------------------
[ ] ANY AUTO BODILY INJURY $
(Per person)
[ ] ALL OWNED AUTOS ----------------------------------
BODILY INJURY $
[ ] SCHEDULED AUTOS (Per accident)
----------------------------------
[ ] HIRED AUTOS PROPERTY DAMAGE $
----------------------------------
[ ] NON-OWNED AUTOS
[ ] __________________________
[ ]
- ------------------------------------------------------------------------------------------------------------------------------------
GARAGE LIABILITY AUTO ONLY - EA ACCIDENT $
[ ] ANY AUTO / / / / ----------------------------------
OTHER THAN AUTO ONLY
[ ] __________________________ ----------------------------------
EACH ACCIDENT $
----------------------------------
[ ] AGGREGATE $
- ------------------------------------------------------------------------------------------------------------------------------------
EXPRESS LIABILITY EACH OCCURRENCE $
[ ] UMBRELLA FORM / / / / ----------------------------------
AGGREGATE $
----------------------------------
[ ] OTHER THAN UMBRELLA FORM $
- ------------------------------------------------------------------------------------------------------------------------------------
WORKERS COMPENSATION AND [ ] STATUTORY LIMITS
EMPLOYERS' LIABILITY / / / / ----------------------------------
EACH ACCIDENT $
THE PROPRIETORY [ ] INCL ----------------------------------
PARTNERS/EXECUTIVE DISEASE - POLICY LIMIT $
OFFICES ARE [ ] EXCL ----------------------------------
DISEASE - EACH EMPLOYEE $
- ------------------------------------------------------------------------------------------------------------------------------------
A OTHER
BUS. PERSONAL PROPERTY 53 SBA EN1169 06/15/97 06/15/98 SPECIAL FORM $50,000
COMPUTERS SPECIAL FORM $100,000
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
DESCRIPTION OF OPERATIONS/LOCATIONS/VEHICLES/SPECIAL ITEMS
- --------------------------------------------------------------------------------
CERTIFICATEHOLDERS CANCELLATION
SHOULD ANY OF THE ABOVE DESCRIBED
POLICIES BE CANCELLED BEFORE THE
EXPIRATION DATE THEREOF, THE ISSUER'S
COMPANY WILL BE REQUIRED TO MAIL 30 DAYS
WRITTEN NOTICE TO THE CERTIFICATE HOLDER
NAMED TO THE LEFT, BUT FAILURE TO MAIL
SUCH NOTICE SHALL IMPOSE NO OBLIGATION
OR LIABILITY OF ANY KIND UPON THE
COMPANY, ITS AGENTS OR REPRESENTATIVES.
-----------------------------------------
AUTHORIZED REPRESENTATIVE
[SIG]
- --------------------------------------------------------------------------------
<PAGE> 252
SCHEDULE 2.18
MATERIAL CHANGES SINCE JUNE 30, 1997
<PAGE> 253
Schedule 2.18
-------------
Material Changes
* None.
<PAGE> 1
EXHIBIT 3.2
SUPPLEMENTAL AGREEMENT
SUPPLEMENTAL AGREEMENT dated as of August 20, 1997 (the "Agreement") to
the Deposit Agreement dated as of February 13, 1997 (the "Deposit Agreement"),
among ILOG S.A., a societe anonyme organized under the laws of France, and its
successors (the "Company"), Morgan Guaranty Trust Company of New York, as
depositary (the "Depositary"), and all Holders from time to time of American
Depositary Receipts (the "ADRs") issued thereunder.
WITNESSETH:
WHEREAS, the Company and the Depositary executed the Deposit Agreement
for the purposes set forth therein;
WHEREAS, notwithstanding Paragraph (1) of the form of ADR of the Deposit
Agreement, the Company has requested that the Depositary accept one or more
deposits of Shares that are "restricted securities" (as such term is defined in
Rule 144 under the Securities Act of 1933, as amended) in certificated form
which may not be freely transferred at the time of deposit in accordance with
such Rule (such securities, "Limited Transfer Securities") into the ADR facility
established pursuant to the Deposit Agreement;
WHEREAS, the Company desires that, upon a deposit of Limited Transfer
Securities, restricted ADSs evidenced by restricted ADRs be issued to or upon
the order of the depositor upon compliance with the provisions of the Deposit
Agreement governing the deposit of Shares and that such restricted ADSs be
subject to terms and conditions of the Deposit Agreement and the further terms,
conditions and restrictions set forth herein; and
WHEREAS, the Company and the Depositary desire to enter into this
Agreement in order to permit the issuance of such
<PAGE> 2
restricted ADSs under the Deposit Agreement and the delivery thereof to or upon
the order of the depositor (such person or entity entitled to receive such
restricted ADSs being the "Depositee" and each such issuance being a
"Transaction").
NOW, THEREFORE, in consideration of the premises and mutual agreements
herein set forth and for good and valuable consideration, the Company and the
Depositary hereby agree as follows:
Section 1. Definitions. Unless otherwise defined in this
Agreement, terms which are defined in the Deposit Agreement are used herein as
therein defined.
Section 2. Issuance of Restricted ADRs. Until such time as the
Depositary has received an opinion of U.S. counsel to the company (or, at the
option of the Company, counsel to the Depositee) in form and substance
reasonably satisfactory to counsel to the Depositary and, in the event that
counsel to the Depositee delivers such opinion, reasonably satisfactory to the
Company, stating that the Shares underlying the ADRs issued in connection with
the Transaction have been registered under the Securities Act of 1933, as
amended (the "Securities Act") or such ADRs, and those ADRs issued on the
transfer, split-up or combination thereof, may be freely transferred under Rule
144 under the Securities Act or another applicable exemption from the
registration requirements thereof, any ADRs issued in connection with the
Transaction or on the Transfer, split-up or combination thereof shall contain
the following legends (the "Legends"):
THE SECURITIES REPRESENTED BY THIS RECEIPT HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT") AND ARE
"RESTRICTED SECURITIES" AS DEFINED IN RULE 144 PROMULGATED UNDER THE
ACT. THE
<PAGE> 3
SECURITIES MAY NOT BE SOLD OR OFFERED FOR SALE OR OTHERWISE
DISTRIBUTED EXCEPT (i) IN CONJUNCTION WITH AN EFFECTIVE
REGISTRATION STATEMENT FOR THE SHARES UNDER THE ACT OR (ii) IN
COMPLIANCE WITH RULE 144, OR (iii) PURSUANT TO AN OPINION OF
COUNSEL SATISFACTORY TO THE CORPORATION, THAT SUCH REGISTRATION
OR COMPLIANCE IS NOT REQUIRED AS TO SAID SALE, OFFER OR
DISTRIBUTION.
THE HOLDER WHOSE NAME APPEARS ON THIS RECEIPT WAS AN AFFILIATE
OF THE COMPANY ON THE DATE OF ISSUANCE HEREOF. NEITHER THE
SHARES NOR THE AMERICAN DEPOSITARY SHARES REPRESENTING SUCH
SHARES MAY BE SOLD, EXCHANGED, PLEDGED, HYPOTHECATED OR
OTHERWISE DISPOSED OF EXCEPT IN COMPLIANCE WITH RULE 144 OF THE
SECURITIES ACT OF 1933, AS AMENDED.
Section 3. Segregation of Deposited Securities. At such time as
any restricted ADRs are issued pursuant to this Agreement, the Depositary shall
instruct the Custodian to hold all Deposited Securities evidenced by the ADSs
represented by the restricted ADRs for so long as such ADRs are restricted in an
account or accounts that are segregated and separate from any other account or
accounts in which Shares of the Company may be held.
Section 4. Form of ADRs. At the discretion of the Depositary, any
ADRs to be issued containing the Legend may be issued pursuant to Section 2 of
the Deposit Agreement on safety paper or shall be printed or lithographed or
shall be in such other form as the Depositary shall so desire. If safety paper
is utilized, such ADR shall not set forth the CUSIP number present on the
other ADRs issued under the Deposit Agreement.
Section 5. Terms and Conditions Applicable to ADRs. Subject to
the further terms, conditions and restrictions set forth herein, all terms and
provisions of the Deposit Agreement are and shall continue to be in full force
and effect and are hereby in all respects ratified, confirmed and incorporated
by
3
<PAGE> 4
reference herein. No person depositing a Limited Transfer Security
shall be deemed under Paragraph (1) of the form of ADR and any other
provisions thereof, to represent and warrant that such security is
not a Limited Transfer Security.
Section 6. Inconsistent Provisions. To the extent that any term
or provision of this Agreement shall be inconsistent with a term or
provision of the Deposit Agreement, the terms and conditions of this
Agreement shall take precedence only to the extent of such inconsistency.
IN WITNESS WHEREOF, ILOG S.A. and MORGAN GUARANTY TRUST COMPANY
OF NEW YORK have duly executed this Agreement as of August 20, 1997.
ILOG S.A.
By /s/ R. D. FRIEDBERGER
-----------------------
Name: Roger Friedberger
Title: Chief Financial Officer
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK
By /s/ JORDANA CHUTTER
---------------------------
Name: Jordana Chutter
Title: Vice President
4
<PAGE> 1
EXHIBIT 4.20
PROMISSORY NOTE
$2,547,945 August 20, 1997
FOR VALUE RECEIVED, ILOG S.A., a French societe anonyme ("COMPANY"),
promises to pay to CPLEX Optimization, Inc. ("PAYEE") the principal sum of two
million five hundred forty seven thousand nine hundred forty five dollars, or
such lesser amount as shall then equal the outstanding principal amount hereof,
together with interest from the date of this Promissory Note (the "NOTE") on the
unpaid principal balance at a rate per annum equal to 6.39% (the AFR Rate)
computed on the basis of the actual number of days elapsed and a year of 365
days, with such unpaid interest compounded monthly. Subject to the provisions of
Sections 2(c) and 6 below, all principal not previously paid pursuant to Section
2 hereof, together with any then unpaid and accrued interest, shall be due and
payable at the earlier of (i) the fourth anniversary of the date of this Note or
(ii) when such amounts are declared due and payable by the Payee, or made
automatically due and payable, upon or after the occurrence of an Event of
Default (as defined below).
This Note is one of three Promissory Notes of the Company (collectively
the "NOTES") of like tenor aggregating U.S. $5,000,000 in principal amount
issued by the Company under an Asset Purchase Agreement dated as of August 4,
1997 (the "ASSET PURCHASE AGREEMENT"), among the Company, ILOG, Inc., the Payee
and the shareholders of the Payee. No Note shall be preferred in any respect
over any other of the Notes because of its sale or transfer by its original or
any subsequent holder.
The following is a statement of the rights of the holder of this Note and
the conditions to which this Note is subject, and to which the holder hereof, by
the acceptance of this Note, agrees:
1. DEFINITIONS. Capitalized terms used without definition herein
which are defined in the Asset Purchase Agreement, dated as of August 4, 1997,
between Company, Todd Lowe, Janet Lowe, Robert Bixby and Payee (the "ASSET
PURCHASE AGREEMENT"), shall have the respective meanings given in the Asset
Purchase Agreement.
2. PAYMENTS; PREPAYMENT; RIGHT OF OFFSET.
(a) Scheduled Principal and Interest Payments. On each of
the second and third anniversaries of the date of this Note, Company shall make
a principal payment to Payee in the amount of eight hundred forty nine thousand
three hundred fifteen dollars ($849,315.00). On the fourth anniversary of the
date of this Note, Company shall pay the entire remaining outstanding principal
amount of this Note together with all accrued but unpaid interest. On the first
day of each fiscal quarter of the Company that begins after the date hereof, the
Company shall make a payment to the holder hereof of all then-accrued and unpaid
interest. Each date upon which principal, interest and/or other amounts are due
under any Note is hereinafter defined as a "Due Date."
<PAGE> 2
(b) Prepayment. This Note may be prepaid in whole or in part
by the Company at any time, or from time to time, without the further consent of
its holder; provided that all prepayments made by Company on this Note and the
other Notes shall be made on a pro rata basis on all of the Notes in proportion
to the amount outstanding under each such Note. Prepayments shall be first
applied to accrued and unpaid interest, and then to principal. If this Note is
prepaid in part, the principal amount so prepaid shall be applied against the
next scheduled principal payment or payments under Section 2(a).
(c) Company's Right of Offset. As more fully provided in and
subject to the terms of Section 8.5 of the Asset Purchase Agreement, Company
shall under certain circumstances have the right to offset any Damages in
respect of which the Payee or the holder hereof may become obliged to indemnify
the Company or ILOG, Inc. up to a maximum amount equal to one million five
hundred twenty eight thousand seven hundred sixty seven dollars ($1,528,767).
Company shall give notice of any such offset to Payee in the manner set forth in
Section 8.4 of the Asset Purchase Agreement, and interest shall cease to accrue
on offset principal amounts on the date of such notice. The amount offset shall
first be applied to accrued and unpaid interest and then to the principal amount
of the next scheduled principal payment or payments under Section 2(a).
3. EVENTS OF DEFAULT. The occurrence of any of the following
shall constitute an "Event of Default" under this Note:
(a) Failure to Pay. Company shall fail to pay any principal,
interest or other payment due under this Note or any other of the Notes on a Due
Date unless such payment is made within five (5) French banking days of
Company's receipt of the holder's written notice to Company of such failure to
pay; or
(b) Voluntary Bankruptcy or Insolvency Proceedings. Company
shall (i) apply for or consent to the appointment of a receiver, trustee,
liquidator or custodian of itself or of all or a substantial part of its
property, (ii) be unable, or admit in writing its inability, to pay its debts
generally as they mature, (iii) make a general assignment for the benefit of its
or any of its creditors, (iv) be dissolved or liquidated in full or in part, or
(v) commence a voluntary case or other proceeding seeking liquidation,
reorganization or other relief with respect to itself or its debts under any
bankruptcy, insolvency or other similar law now or hereafter in effect or
consent to any such relief or to the appointment of or taking possession of its
property by any official in an involuntary case or other proceeding commenced
against it;
(c) Involuntary Bankruptcy or Insolvency Proceedings.
Proceedings for the appointment of a receiver, trustee, liquidator or custodian
of Company or of all or a substantial part of the property thereof, or an
involuntary case or other proceedings seeking liquidation, reorganization or
other relief with respect to Company or the debts thereof under any bankruptcy,
insolvency or other similar law now or hereafter in effect shall be commenced
and an order for relief entered or such proceeding shall not be dismissed or
discharged within sixty (60) days of commencement; or
-2-
<PAGE> 3
(d) Cross Acceleration. Company shall default under any
contract or instrument evidencing indebtedness having a principal amount in
excess of $1,000,000 and such default shall result in such indebtedness becoming
due and owing prior to its stated maturity.
4. RIGHTS OF HOLDER UPON DEFAULT. Upon the occurrence or
existence of any Event of Default under Section 3(a) or 3(d) and at any time
thereafter during the continuance of such Event of Default, the holder of this
Note may with the consent of the Majority in Interest, by written notice to
Company, declare all unpaid principal and interest hereunder to be immediately
due and payable without presentment, demand, protest or any other notice of any
kind, all of which are hereby expressly waived. Upon the occurrence or existence
of any Event of Default described in Paragraphs 3(b) or 3(c), immediately and
without notice, all outstanding amounts payable by Company hereunder shall
automatically become immediately due and payable. In addition to the foregoing
remedies, upon the occurrence or existence of any Event of Default, Payee may
exercise any other right, power or remedy permitted to it by law, either by suit
in equity or by action at law, or both. Upon the occurrence and during the
continuance of an Event of Default under Section 3(a), all amounts outstanding
that are past due under this Note shall accrue interest at the rate of 15%. For
purposes of this Section 4, a "MAJORITY IN INTEREST" shall mean holders holding
a majority of the outstanding principal under all of the Notes.
5. ASSIGNMENT; SUCCESSORS AND ASSIGNS. This Note may not be
assigned by the Payee without the written consent of the Company and the Company
hereby consents to the assignment of the Note to Robert Bixby. Notwithstanding
the foregoing, the rights and obligations of Company and the Payee of this Note
shall be binding upon and benefit the successors, assigns, heirs, administrators
and transferees of the parties.
6. WAIVER AND AMENDMENT. Any provision of the Notes may be
amended, waived or modified only upon the written consent of Company and the
Majority in Interest.
7. NOTICES. Any notice, request or other communication required
or permitted hereunder shall be in writing and shall be deemed to have been duly
given if personally delivered or mailed by registered or certified mail, postage
prepaid, or by recognized overnight courier or personal delivery at the
respective addresses of the parties as set forth in the Asset Purchase Agreement
or on the register maintained by Company. Any party hereto may by notice so
given change its address for future notice hereunder. Notice shall conclusively
be deemed to have been given when received.
8. PAYMENT. Payment shall be made in lawful tender of the United
States.
9. USURY. In the event any interest is paid on this Note which is
deemed to be in excess of the then legal maximum rate, then that portion of the
interest payment representing an amount in excess of the then legal maximum rate
shall be deemed a payment of principal and applied against the principal of this
Note.
10. EXPENSES. If action is instituted to collect this Note, the
prevailing party shall be entitled to reimbursement from the other party for all
costs and expenses, including, without limitation, reasonable attorneys' fees
and costs, incurred by the prevailing party in connection with such action.
-3-
<PAGE> 4
11. GOVERNING LAW. This Note and all actions arising out of or in
connection with this Note shall be governed by and construed in accordance with
the laws of the State of Delaware, without regard to the conflicts of law
provisions of the State of Delaware or of any other jurisdiction.
IN WITNESS WHEREOF, Company has caused this Note to be issued as of
the date first written above.
ILOG S.A.
By: /s/ ROGER FRIEDBERGER
-------------------------------------
Name: Roger Friedberger
-----------------------------------
Title: Chief Financial Officer
----------------------------------
-4-
<PAGE> 1
EXHIBIT 4.21
PROMISSORY NOTE
$1,470,320 August 20, 1997
FOR VALUE RECEIVED, ILOG S.A., a French societe anonyme ("COMPANY"),
promises to pay to CPLEX Optimization, Inc. ("PAYEE") the principal sum of one
million four hundred seventy thousand three hundred twenty dollars, or such
lesser amount as shall then equal the outstanding principal amount hereof,
together with interest from the date of this Promissory Note (the "NOTE") on the
unpaid principal balance at a rate per annum equal to 6.39% (the AFR Rate)
computed on the basis of the actual number of days elapsed and a year of 365
days, with such unpaid interest compounded monthly. Subject to the provisions of
Sections 2(c) and 6 below, all principal not previously paid pursuant to Section
2 hereof, together with any then unpaid and accrued interest, shall be due and
payable at the earlier of (i) the fourth anniversary of the date of this Note or
(ii) when such amounts are declared due and payable by the Payee, or made
automatically due and payable, upon or after the occurrence of an Event of
Default (as defined below).
This Note is one of three Promissory Notes of the Company (collectively
the "NOTES") of like tenor aggregating U.S. $5,000,000 in principal amount
issued by the Company under an Asset Purchase Agreement dated as of August 4,
1997 (the "ASSET PURCHASE AGREEMENT"), among the Company, ILOG, Inc., the Payee
and the shareholders of the Payee. No Note shall be preferred in any respect
over any other of the Notes because of its sale or transfer by its original or
any subsequent holder.
The following is a statement of the rights of the holder of this Note and
the conditions to which this Note is subject, and to which the holder hereof, by
the acceptance of this Note, agrees:
1. DEFINITIONS. Capitalized terms used without definition herein
which are defined in the Asset Purchase Agreement, dated as of August 4, 1997,
between Company, Todd Lowe, Janet Lowe, Robert Bixby and Payee (the "ASSET
PURCHASE AGREEMENT"), shall have the respective meanings given in the Asset
Purchase Agreement.
2. PAYMENTS; PREPAYMENT; RIGHT OF OFFSET.
(a) Scheduled Principal and Interest Payments. On each of
the second and third anniversaries of the date of this Note, Company shall make
a principal payment to Payee in the amount of four hundred ninety thousand one
hundred six dollars and sixty seven cents ($490,106.67). On the fourth
anniversary of the date of this Note, Company shall pay the entire remaining
outstanding principal amount of this Note together with all accrued but unpaid
interest. On the first day of each fiscal quarter of the Company that begins
after the date hereof, the Company shall make a payment to the holder hereof of
all then-accrued and unpaid interest. Each date upon which principal, interest
and/or other amounts are due under any Note is hereinafter defined as a "Due
Date."
-1-
<PAGE> 2
(b) Prepayment. This Note may be prepaid in whole or in part
by the Company at any time, or from time to time, without the further consent of
its holder; provided that all prepayments made by Company on this Note and the
other Notes shall be made on a pro rata basis on all of the Notes in proportion
to the amount outstanding under each such Note. Prepayments shall be first
applied to accrued and unpaid interest, and then to principal. If this Note is
prepaid in part, the principal amount so prepaid shall be applied against the
next scheduled principal payment or payments under Section 2(a).
(c) Company's Right of Offset. As more fully provided in and
subject to the terms of Section 8.5 of the Asset Purchase Agreement, Company
shall under certain circumstances have the right to offset any Damages in
respect of which the Payee or the holder hereof may become obliged to indemnify
the Company or ILOG, Inc. up to a maximum amount equal to eight hundred eighty
two thousand one hundred ninety two dollars ($882,192). Company shall give
notice of any such offset to Payee in the manner set forth in Section 8.4 of the
Asset Purchase Agreement, and interest shall cease to accrue on offset principal
amounts on the date of such notice. The amount offset shall first be applied to
accrued and unpaid interest and then to the principal amount of the next
scheduled principal payment or payments under Section 2(a).
3. EVENTS OF DEFAULT. The occurrence of any of the following
shall constitute an "Event of Default" under this Note:
(a) Failure to Pay. Company shall fail to pay any principal,
interest or other payment due under this Note or any other of the Notes on a Due
Date unless such payment is made within five (5) French banking days of
Company's receipt of the holder's written notice to Company of such failure to
pay; or
(b) Voluntary Bankruptcy or Insolvency Proceedings. Company
shall (i) apply for or consent to the appointment of a receiver, trustee,
liquidator or custodian of itself or of all or a substantial part of its
property, (ii) be unable, or admit in writing its inability, to pay its debts
generally as they mature, (iii) make a general assignment for the benefit of its
or any of its creditors, (iv) be dissolved or liquidated in full or in part, or
(v) commence a voluntary case or other proceeding seeking liquidation,
reorganization or other relief with respect to itself or its debts under any
bankruptcy, insolvency or other similar law now or hereafter in effect or
consent to any such relief or to the appointment of or taking possession of its
property by any official in an involuntary case or other proceeding commenced
against it;
(c) Involuntary Bankruptcy or Insolvency Proceedings.
Proceedings for the appointment of a receiver, trustee, liquidator or custodian
of Company or of all or a substantial part of the property thereof, or an
involuntary case or other proceedings seeking liquidation, reorganization or
other relief with respect to Company or the debts thereof under any bankruptcy,
insolvency or other similar law now or hereafter in effect shall be commenced
and an order for relief entered or such proceeding shall not be dismissed or
discharged within sixty (60) days of commencement; or
-2-
<PAGE> 3
(d) Cross Acceleration. Company shall default under any
contract or instrument evidencing indebtedness having a principal amount in
excess of $1,000,000 and such default shall result in such indebtedness becoming
due and owing prior to its stated maturity.
4. RIGHTS OF HOLDER UPON DEFAULT. Upon the occurrence or
existence of any Event of Default under Section 3(a) or 3(d) and at any time
thereafter during the continuance of such Event of Default, the holder of this
Note may with the consent of the Majority in Interest, by written notice to
Company, declare all unpaid principal and interest hereunder to be immediately
due and payable without presentment, demand, protest or any other notice of any
kind, all of which are hereby expressly waived. Upon the occurrence or existence
of any Event of Default described in Paragraphs 3(b) or 3(c), immediately and
without notice, all outstanding amounts payable by Company hereunder shall
automatically become immediately due and payable. In addition to the foregoing
remedies, upon the occurrence or existence of any Event of Default, Payee may
exercise any other right, power or remedy permitted to it by law, either by suit
in equity or by action at law, or both. Upon the occurrence and during the
continuance of an Event of Default under Section 3(a), all amounts outstanding
that are past due under this Note shall accrue interest at the rate of 15%. For
purposes of this Section 4, a "MAJORITY IN INTEREST" shall mean holders holding
a majority of the outstanding principal under all of the Notes.
5. ASSIGNMENT; SUCCESSORS AND ASSIGNS. This Note may not be
assigned by the Payee without the written consent of the Company and the Company
hereby consents to the assignment of the Note to Janet Lowe. Notwithstanding the
foregoing, the rights and obligations of Company and the Payee of this Note
shall be binding upon and benefit the successors, assigns, heirs, administrators
and transferees of the parties.
6. WAIVER AND AMENDMENT. Any provision of the Notes may be
amended, waived or modified only upon the written consent of Company and the
Majority in Interest.
7. NOTICES. Any notice, request or other communication required
or permitted hereunder shall be in writing and shall be deemed to have been duly
given if personally delivered or mailed by registered or certified mail, postage
prepaid, or by recognized overnight courier or personal delivery at the
respective addresses of the parties as set forth in the Asset Purchase Agreement
or on the register maintained by Company. Any party hereto may by notice so
given change its address for future notice hereunder. Notice shall conclusively
be deemed to have been given when received.
8. PAYMENT. Payment shall be made in lawful tender of the United
States.
9. USURY. In the event any interest is paid on this Note which is
deemed to be in excess of the then legal maximum rate, then that portion of the
interest payment representing an amount in excess of the then legal maximum rate
shall be deemed a payment of principal and applied against the principal of this
Note.
10. EXPENSES. If action is instituted to collect this Note, the
prevailing party shall be entitled to reimbursement from the other party for all
costs and expenses, including, without limitation, reasonable attorneys' fees
and costs, incurred by the prevailing party in connection with such action.
-3-
<PAGE> 4
11. GOVERNING LAW. This Note and all actions arising out of or in
connection with this Note shall be governed by and construed in accordance with
the laws of the State of Delaware, without regard to the conflicts of law
provisions of the State of Delaware or of any other jurisdiction.
IN WITNESS WHEREOF, Company has caused this Note to be issued as of
the date first written above.
ILOG S.A.
By: /s/ Roger Friedberger
-------------------------------------
Name: Roger Friedberger
-----------------------------------
Title: Chief Financial Officer
----------------------------------
-4-
<PAGE> 1
EXHIBIT 4.22
PROMISSORY NOTE
$981,735 August 20, 1997
FOR VALUE RECEIVED, ILOG S.A., a French societe anonyme ("COMPANY"),
promises to pay to CPLEX Optimization, Inc. ("PAYEE") the principal sum of nine
hundred eighty one thousand seven hundred thirty five dollars, or such lesser
amount as shall then equal the outstanding principal amount hereof, together
with interest from the date of this Promissory Note (the "NOTE") on the unpaid
principal balance at a rate per annum equal to 6.39% (the AFR Rate) computed on
the basis of the actual number of days elapsed and a year of 365 days, with such
unpaid interest compounded monthly. Subject to the provisions of Sections 2(c)
and 6 below, all principal not previously paid pursuant to Section 2 hereof,
together with any then unpaid and accrued interest, shall be due and payable at
the earlier of (i) the fourth anniversary of the date of this Note or (ii) when
such amounts are declared due and payable by the Payee, or made automatically
due and payable, upon or after the occurrence of an Event of Default (as defined
below).
This Note is one of three Promissory Notes of the Company (collectively
the "NOTES") of like tenor aggregating U.S. $5,000,000 in principal amount
issued by the Company under an Asset Purchase Agreement dated as of August 4,
1997 (the "ASSET PURCHASE AGREEMENT"), among the Company, ILOG, Inc., the Payee
and the shareholders of the Payee. No Note shall be preferred in any respect
over any other of the Notes because of its sale or transfer by its original or
any subsequent holder.
The following is a statement of the rights of the holder of this Note and
the conditions to which this Note is subject, and to which the holder hereof, by
the acceptance of this Note, agrees:
1. DEFINITIONS. Capitalized terms used without definition herein
which are defined in the Asset Purchase Agreement, dated as of August 4, 1997,
between Company, Todd Lowe, Janet Lowe, Robert Bixby and Payee (the "ASSET
PURCHASE AGREEMENT"), shall have the respective meanings given in the Asset
Purchase Agreement.
2. PAYMENTS; PREPAYMENT; RIGHT OF OFFSET.
(a) Scheduled Principal and Interest Payments. On each of
the second and third anniversaries of the date of this Note, Company shall make
a principal payment to Payee in the amount of three hundred twenty seven
thousand two hundred forty five dollars ($327,245.00). On the fourth anniversary
of the date of this Note, Company shall pay the entire remaining outstanding
principal amount of this Note together with all accrued but unpaid interest. On
the first day of each fiscal quarter of the Company that begins after the date
hereof, the Company shall make a payment to the holder hereof of all
then-accrued and unpaid interest. Each date upon which principal, interest
and/or other amounts are due under any Note is hereinafter defined as a "Due
Date."
<PAGE> 2
(b) Prepayment. This Note may be prepaid in whole or in part
by the Company at any time, or from time to time, without the further consent of
its holder; provided that all prepayments made by Company on this Note and the
other Notes shall be made on a pro rata basis on all of the Notes in proportion
to the amount outstanding under each such Note. Prepayments shall be first
applied to accrued and unpaid interest, and then to principal. If this Note is
prepaid in part, the principal amount so prepaid shall be applied against the
next scheduled principal payment or payments under Section 2(a).
(c) Company's Right of Offset. As more fully provided in and
subject to the terms of Section 8.5 of the Asset Purchase Agreement, Company
shall under certain circumstances have the right to offset any Damages in
respect of which the Payee or the holder hereof may become obliged to indemnify
the Company or ILOG, Inc. up to a maximum amount equal to five hundred eighty
nine thousand forty one dollars ($589,041). Company shall give notice of any
such offset to Payee in the manner set forth in Section 8.4 of the Asset
Purchase Agreement, and interest shall cease to accrue on offset principal
amounts on the date of such notice. The amount offset shall first be applied to
accrued and unpaid interest and then to the principal amount of the next
scheduled principal payment or payments under Section 2(a).
3. EVENTS OF DEFAULT. The occurrence of any of the following
shall constitute an "Event of Default" under this Note:
(a) Failure to Pay. Company shall fail to pay any principal,
interest or other payment due under this Note or any other of the Notes on a Due
Date unless such payment is made within five (5) French banking days of
Company's receipt of the holder's written notice to Company of such failure to
pay; or
(b) Voluntary Bankruptcy or Insolvency Proceedings. Company
shall (i) apply for or consent to the appointment of a receiver, trustee,
liquidator or custodian of itself or of all or a substantial part of its
property, (ii) be unable, or admit in writing its inability, to pay its debts
generally as they mature, (iii) make a general assignment for the benefit of its
or any of its creditors, (iv) be dissolved or liquidated in full or in part, or
(v) commence a voluntary case or other proceeding seeking liquidation,
reorganization or other relief with respect to itself or its debts under any
bankruptcy, insolvency or other similar law now or hereafter in effect or
consent to any such relief or to the appointment of or taking possession of its
property by any official in an involuntary case or other proceeding commenced
against it;
(c) Involuntary Bankruptcy or Insolvency Proceedings.
Proceedings for the appointment of a receiver, trustee, liquidator or custodian
of Company or of all or a substantial part of the property thereof, or an
involuntary case or other proceedings seeking liquidation, reorganization or
other relief with respect to Company or the debts thereof under any bankruptcy,
insolvency or other similar law now or hereafter in effect shall be commenced
and an order for relief entered or such proceeding shall not be dismissed or
discharged within sixty (60) days of commencement; or
-2-
<PAGE> 3
(d) Cross Acceleration. Company shall default under any
contract or instrument evidencing indebtedness having a principal amount in
excess of $1,000,000 and such default shall result in such indebtedness becoming
due and owing prior to its stated maturity.
4. RIGHTS OF HOLDER UPON DEFAULT. Upon the occurrence or
existence of any Event of Default under Section 3(a) or 3(d) and at any time
thereafter during the continuance of such Event of Default, the holder of this
Note may with the consent of the Majority in Interest, by written notice to
Company, declare all unpaid principal and interest hereunder to be immediately
due and payable without presentment, demand, protest or any other notice of any
kind, all of which are hereby expressly waived. Upon the occurrence or existence
of any Event of Default described in Paragraphs 3(b) or 3(c), immediately and
without notice, all outstanding amounts payable by Company hereunder shall
automatically become immediately due and payable. In addition to the foregoing
remedies, upon the occurrence or existence of any Event of Default, Payee may
exercise any other right, power or remedy permitted to it by law, either by suit
in equity or by action at law, or both. Upon the occurrence and during the
continuance of an Event of Default under Section 3(a), all amounts outstanding
that are past due under this Note shall accrue interest at the rate of 15%. For
purposes of this Section 4, a "MAJORITY IN INTEREST" shall mean holders holding
a majority of the outstanding principal under all of the Notes.
5. ASSIGNMENT; SUCCESSORS AND ASSIGNS. This Note may not be
assigned by the Payee without the written consent of the Company and the Company
hereby consents to the assignment of the Note to Todd A. Lowe. Notwithstanding
the foregoing, the rights and obligations of Company and the Payee of this Note
shall be binding upon and benefit the successors, assigns, heirs, administrators
and transferees of the parties.
6. WAIVER AND AMENDMENT. Any provision of the Notes may be
amended, waived or modified only upon the written consent of Company and the
Majority in Interest.
7. NOTICES. Any notice, request or other communication required
or permitted hereunder shall be in writing and shall be deemed to have been duly
given if personally delivered or mailed by registered or certified mail, postage
prepaid, or by recognized overnight courier or personal delivery at the
respective addresses of the parties as set forth in the Asset Purchase Agreement
or on the register maintained by Company. Any party hereto may by notice so
given change its address for future notice hereunder. Notice shall conclusively
be deemed to have been given when received.
8. PAYMENT. Payment shall be made in lawful tender of the United
States.
9. USURY. In the event any interest is paid on this Note which is
deemed to be in excess of the then legal maximum rate, then that portion of the
interest payment representing an amount in excess of the then legal maximum rate
shall be deemed a payment of principal and applied against the principal of this
Note.
10. EXPENSES. If action is instituted to collect this Note, the
prevailing party shall be entitled to reimbursement from the other party for all
costs and expenses, including, without limitation, reasonable attorneys' fees
and costs, incurred by the prevailing party in connection with such action.
-3-
<PAGE> 4
11. GOVERNING LAW. This Note and all actions arising out of or in
connection with this Note shall be governed by and construed in accordance with
the laws of the State of Delaware, without regard to the conflicts of law
provisions of the State of Delaware or of any other jurisdiction.
IN WITNESS WHEREOF, Company has caused this Note to be issued as of
the date first written above.
ILOG S.A.
By: /s/ Roger Friedberger
-------------------------------------
Name: Roger Friedberger
-----------------------------------
Title: Chief Financial Officer
----------------------------------
-4-
<PAGE> 1
EXHIBIT 4.23
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "AGREEMENT"), dated as of the 20th day of
August, 1997 the ("EFFECTIVE DATE"), by and between ILOG, Inc., a California
corporation (the "COMPANY") and the undersigned employee ("EMPLOYEE") of
Company.
AGREEMENT
NOW, THEREFORE, IT IS HEREBY AGREED by and among the parties hereto as
follows:
1. EMPLOYMENT BY COMPANY; DUTIES.
(a) Employment. Subject to the terms and conditions set forth
herein, the Company hereby agrees to employ Employee in the position of
Executive Vice President, CPLEX Business, having all the duties and
responsibilities customarily associated with such positions, subject to
modification from time to time by the Company, and Employee hereby accepts such
employment by the Company. Employee's duty's shall initially include the
management of the CPLEX Technology Center, and Employee shall report to the
Chief Executive Officer of the Company's parent entity. With respect to any
modifications of Employee's position and/or duties during the term of Employee's
employment hereunder, the Company shall give due consideration to Employee's
skills and experience in determining the appropriate position and duties of
Employee and shall not, without Employee's consent, modify Employee's position
or duties in a manner inconsistent with Employee's status as a senior executive
officer of the Company; provided, however, that the foregoing shall in no way
limit the ability of the Company to terminate Employee's employment at any time
for any reason or for no reason. Such employment shall commence on the Effective
Date and shall continue until terminated as provided in Paragraph 3 hereof.
Employee shall not, without the prior written consent of Company, directly or
indirectly, alone or as part of any group, association or organization, be
actively engaged in or concerned with any other duties or pursuits which
interfere with the performance of Employee's duties to Company or which may be
contrary to the best interests of the Company.
(b) Company Policies. The employment relationship between the
parties shall also be governed by the general employment policies and practices
of the Company now in effect or which may become effective in the future,
including those relating to the protection of confidential information and trade
secrets, except that when the terms of this Agreement differ from or are in
conflict with the Company's general employment policies or practices, this
Agreement shall control.
<PAGE> 2
2. COMPENSATION AND BENEFITS.
(a) Base Salary; Bonuses; Compensation for Part-Time Employment.
As compensation for the services to be rendered by Employee during his Full-Time
Employment hereunder, including all services rendered to entities affiliated
with the Company, the Company agrees to pay Employee in accordance with the
Company's regular payroll practices, direct salary compensation at the rate of
$150,000 per year (as adjusted from time to time pursuant to the terms hereof,
the "BASE SALARY"), commencing on the Effective Date. In addition, Employee
shall be eligible to receive a performance bonus in the target amount of
$50,000, with the actual bonus to be determined based on the achievement of
performance criteria to be determined by mutual agreement of the Company and
Employee (as adjusted from time to time pursuant to the terms hereof, the
"BONUS"). For purposes of this Agreement, "FULL-TIME EMPLOYMENT" shall mean all
periods of time during which Employee is devoting all of Employee's working
time, attention and energies to performing Employee's duties to the Company. In
the event Employee desires to reduce the level of Employee's time, attention or
energies devoted to the Company to below Full-Time Employment levels, Employee
shall give the Company sixty day's written notice of such request and the
Company shall not unreasonably deny such request. Such notice shall quantify
Employee's desired level of time, attention and energies to be devoted to the
Company and the effective date of such reduction (any such periods of time
during which such reduction are in effect, "PART-TIME EMPLOYMENT"). Employee
may, subject to the consent of the Company which consent shall not be
unreasonably withheld, request to resume Full-Time Employment or further adjust
the level of Employee's Part-Time Employment upon sixty day's notice. During
any period of Part-Time Employment, Employee's Base Salary and Bonus shall be
proportionately adjusted by the Company in good faith. Such good-faith
adjustments by the Company shall be conclusive and binding on Employee.
(b) Employee Benefits. Employee shall be eligible to participate
in the employee benefit plans and arrangements which are available or which
become available, in the discretion of the Company's Board of Directors, to
other employees of the Company, subject in each case to the generally applicable
terms and conditions of the plan or arrangement in question and to the
determination of any committee administering such plan or arrangement. The
Company's presently available benefits are listed on Exhibit A hereto.
Employee's benefits shall not be reduced during periods of Part-Time Employment,
except that benefits that are based on levels of salary and bonus compensation,
such as moneys paid during periods of paid vacation, shall be proportionately
adjusted by the Company in good faith.
(c) Annual Compensation Review. Employee and the Company shall
review Employee's Base Salary and Bonus structure annually and may make mutually
agreeable adjustments at such times.
3. TERM AND TERMINATION.
(a) Term; Effect of Termination. Unless terminated by either party
as provided below, this Agreement shall remain in full force and effect until
the date three years after the Effective Date (such three year period, the
"DEFAULT TERM") and may be extended for one annual term upon the mutual
agreement of Employee and the Company (any such extension period, the "EXTENDED
TERM"). Provisions of this Agreement that expressly relate to periods of time
following the term of this Agreement or of Employee's employment shall survive
any termination or expiration
<PAGE> 3
of this Agreement or of Employee's employment with the Company.
(b) Limitation of Liability upon Termination. If Employee's
employment terminates (or is terminated) for any reason (or for no reason),
Employee shall not be entitled to any payments, benefits, damages, awards or
compensation other than as provided in this Agreement, or as may otherwise be
available in accordance with the Company's established employee plans and
policies at the time of termination. Subject to the terms and conditions hereof,
Employee acknowledges that Employee's employment hereunder shall be on an
at-will basis and that Company may terminate Employee's employment hereunder at
any time with or without Cause.
(c) Termination for Cause; Definition of "Cause". Employee's
employment with the Company may be terminated for Cause at any time by the
Company, upon reasonable notice to Employee of the circumstances leading to such
termination for Cause. For the purpose of this Agreement, "CAUSE" shall mean (i)
the substantial and continuing failure to render services to the Company or its
affiliated entities in accordance with Employee's assigned duties (other than as
a result of Employee's Disability, as defined below, or other medically
determinable serious physical impairment), as determined by the Board of
Directors of the Company's parent entity, if such failure remains uncured for a
period of 30 days following delivery of notice to Employee of such failure; (ii)
the conviction of a felony; (iii) gross negligence, dishonesty, breach of
fiduciary duty or material breach of the terms of any confidentiality,
noncompetition or other agreement in favor of the Company or its affiliated
entities; (iv) the commission of an act of fraud or embezzlement which results
in loss, damage or injury to the Company or its affiliated entities, whether
directly or indirectly; or (v) the commission of an act which constitutes unfair
competition with the Company or its affiliated entities or which induces any
customer of the Company or its affiliated entities to break a contract with the
Company or its affiliated entities.
(d) Continuation of Option Vesting upon Certain Events. In
connection with the commencement of Employee's employment with the Company,
Employee has been or will be granted an option to purchase up to 200,000 shares
of ILOG S.A. under its 1996 Stock Option Plan pursuant to an option agreement in
substantially the form attached hereto as Exhibit B (the "OPTION"). Upon
termination of Employee's employment for any reason, Employee shall have the
right to exercise, within 90 days of such termination, the portion of Employee's
Option that is then-exercisable pursuant to the terms and conditions of such
option agreement and such option plan; provided, however, that, notwithstanding
any term of such option agreement or such option plan to the contrary, if at any
time prior to such time as the Option becomes fully vested and exercisable,
either (X) the Company terminates Employee's employment with the Company without
Employee's consent other than for Cause or (Y) Employee dies or becomes Disabled
(as defined below) then, in each case, Employee's Option shall (i) continue to
vest until fully vested and (ii) continue to be exercisable to the extent
vested, in each case, as if Employee had remained alive, not Disabled and
employed by the Company throughout the term of the Option.
(e) Continuation of Salary, Bonus and Benefits upon Termination
without Cause. If the Company terminates Employee's employment with the Company
during the Default Term without Employee's consent other than for Cause, then,
during the remaining Default Term, the Company shall continue to pay Employee
the annual Base Salary and target Bonus in effect immediately prior to such
termination and shall continue to provide Employee with benefits
<PAGE> 4
substantially equivalent to those being provided immediately prior to such
termination.
(f) Definitions of Disability and Disabled. For purposes of this
Agreement, the terms "Disabled" and "Disability" shall refer to a state of
Employee's "permanent and total disability" as such term is defined in Section
22(e)(3) of the Internal Revenue Code of 1986, as amended.
4. PROPRIETARY INFORMATION; NONINTERFERENCE. As a condition to
the effectiveness of this Agreement, Employee shall execute the
Proprietary Information and Invention Assignment Agreement attached
hereto as Exhibit C.
5. MISCELLANEOUS.
(a) Notices. Any notice required or permitted hereunder shall be
given in writing and shall be deemed effectively given upon personal delivery or
upon the third day after deposit with the United States Post Office, by
registered or certified mail, postage prepaid, return receipt requested,
addressed to the Company or Employee at the addresses set forth on the signature
page of this Agreement, or at such other address as such party may designate by
ten (10) days advance written notice to the other party.
(b) Severability. Nothing in this Agreement shall be construed so
as to require the commission of any act contrary to law and wherever there is
any conflict between any provision of this Agreement and any law, statute,
ordinance, order or regulation, the latter shall prevail, but in such event any
provision of this Agreement shall be curtailed and limited only to the extent
necessary to bring it within applicable legal requirements. If any provision of
this Agreement should be held invalid or unenforceable, the remaining provisions
shall be unaffected by such a holding.
(c) Tax Matters. Employee has consulted Employee's own independent
tax and legal advisors with respect to the transactions contemplated by this
Agreement and is not relying in any respect on the Company or any officer,
employee, or other agent or representative of the Company to provide any advice
with respect to the federal, state, local or foreign tax consequences of the
transactions contemplated hereby. Employee alone will bear Employee's tax
consequences, if any, associated with the transactions contemplated hereby and
will not seek any reimbursement in connection with any such tax consequences
from the Company.
(d) Complete Agreement. This Agreement and the exhibits attached
hereto contain the entire agreement and understanding between the parties
relating to the subject matter hereof, and supersedes any prior understandings,
agreements, or representations by or between the parties, written or oral,
relating to the subject matter hereof.
(e) Successors and Assigns. This Agreement and the rights and
obligations of the parties hereto shall bind and inure to the benefit of any
successor or successors of the Company by way of reorganization, merger or
consolidation and any assignee of all or substantially all of its business and
assets, but except as to any such successor or assignee of the Company, neither
this Agreement nor any rights or benefits hereunder may be assigned by the
Company or Employee.
(f) Amendments. Notwithstanding anything to the contrary contained
in this
<PAGE> 5
Agreement, the parties to this Agreement may make any modification or amendment
to this Agreement only by a mutual agreement in writing.
(g) Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of California as such laws
are applied to contracts entered into and to be performed entirely within the
State of California.
IN WITNESS WHEREOF, the parties have executed and delivered this
Agreement on the day and year first above written.
ILOG, INC.
By: /s/ Roger Friedberger
-------------------------------------
EMPLOYEE
/s/ Todd Lowe
-----------------------------------------
(Signature)
Todd Lowe
-----------------------------------------
(Print Name)
-----------------------------------------
-----------------------------------------
(Print Address)
-----------------------------------------
(Print Telephone Number)
<PAGE> 6
Exhibit A
While Employee remains employed with the Company, Employee shall be eligible for
all benefits offered to Company employees generally, currently including Aetna
Medical HMO/PPO coverage, dental and vision insurance plans, Accidental Death &
Disability Insurance, Section 125 pre-tax medical and dependent care expense
reimbursement plan, and 401(k) plan. In addition, Employee shall be entitled to
paid vacation during each year of employment of the greater of (i) four weeks or
(ii) the then-current annual paid vacation allowed by the Company's standard
benefit policy (currently three weeks).
<PAGE> 7
Exhibit B
ILOG S.A.
1996 STOCK OPTION GRANT AGREEMENT
PART I
NOTICE OF STOCK OPTION GRANT
Mr. Todd Lowe
You have been granted an Option to subscribe Shares of the Company,
subject to the terms and conditions of the 1996 Stock Option Plan, as amended
(the "Plan"), and this Option Agreement. Unless otherwise defined herein, the
terms defined in the Plan shall have the same defined meanings in this Option
Agreement.
<TABLE>
<S> <C>
Grant Number: SO96/97/
Date of Grant: August 20, 1997
Vesting Commencement Date: August 20, 1997
Vesting period: Four years
Share Per Value: FF 4.00
Exercise Price per Share: FF 36.84
Total Number of Shares Granted: 200,000
Total Exercise Price: FF 7,368,000
Type of Option: Incentive Stock Option
Term/Expiration Date: Ten Years
</TABLE>
<PAGE> 8
VESTING SCHEDULE:
This Option may be exercised, in whole or in part, in accordance
with the following schedule:
25% of the Shares subject to the Option shall vest twelve months
after the Vesting Commencement Date, and 1/48 of the Shares subject to the
Option shall vest each month thereafter.
Except as may be provided in that certain Employment Agreement by
and between Optionee and ILOG, Inc. dated as of August 20, 1997 (the "Employment
Agreement"), vesting shall continue only during Optionee's Continuous Status as
a Beneficiary.
TERMINATION PERIOD:
Except as provided in the Employment Agreement, this Option may be
exercised for ninety (90) days after termination of the Optionee's employment or
term of office with the Company or an Affiliated Company as the case may be.
Upon the Death or Disability of the Optionee, this Option may be exercised for
such longer period as provided in the Plan or the Employment Agreement. Save as
provided in the Plan, in no event shall this Option be exercised later than the
Term/Expiration Date as provided above.
By his signature and the signature of the Company's representative
below, the Optionee and the Company agree that this Option is granted under and,
except to the extent inconsistent with the Employment Agreement, governed by the
terms and conditions of the Plan and this Option Agreement. The Optionee has
reviewed the Plan and this Option Agreement in their entirety, has had the
opportunity to obtain advice of counsel prior to executing this Option Agreement
and fully understands all provisions of the Plan and Option Agreement. The
Optionee hereby agrees to accept as binding, conclusive and final all decisions
or interpretations of the Administrator upon any questions relating to the Plan
and Option Agreement which are not governed by the Employment Agreement. The
Optionee further agrees to notify the Company upon any change in the residence
address indicated below.
The Company and the Optionee recognize that the Plan has been
prepared both in the French and the English language. The French version is the
version that binds the parties, notwithstanding this, the English version
represents an acceptable translation and, consequently, no official translation
will be required for the interpretation of this agreement.
OPTIONEE: ILOG S.A.
______________________________ By:_____________________________
Signature
Print Name Name: Roger Friedberger
--------------------------
Title: Chief Financial Officer
- ------------------------------ -------------------------
Residence Address
- ------------------------------
<PAGE> 9
ILOG S. A.
1996 STOCK OPTION GRANT AGREEMENT
PART II
TERMS AND CONDITIONS
1. Grant of Option. The Plan Administrator of the Company hereby grants
to the Optionee named in the Notice of Grant attached as Part I of this
Agreement (the "Optionee"), an option (the "Option") to subscribe the number of
Shares, as set forth in the Notice of Grant, at the exercise price per Share set
forth in the Notice of Grant (the "Exercise Price"), subject to the terms and
conditions of the 1996 Stock Option Plan, as amended, which is incorporated
herein by reference. In the event of a conflict between the terms and conditions
of the Plan and the terms and conditions of this Option Agreement, the terms and
conditions of the Plan shall prevail.
If designated in the Notice of Grant as an Incentive Stock Option, this
Option is intended to qualify as an Incentive Stock Option under Section 422 of
the Code. However, if this Option is intended to be an Incentive Stock Option,
to the extent that it exceeds the $100,000 rule of Code Section 422(d) it shall
be treated as a Non-statutory Stock Option.
2. Exercise of Option.
(a) Right to Exercise. This Option is exercisable during its term in
accordance with the Vesting Schedule set out in the Notice of Grant and the
applicable provisions of the Plan and this Option Agreement. In the event of
Optionee's death, disability or other termination of Optionee's employment or
term of office, the exercisability of the Option is governed by the applicable
provisions of the Plan and this Option Agreement.
(b) Method of Exercise. This Option is exercisable by delivery of an
exercise notice, in the form attached hereto (the "Exercise Notice"), comprising
a share subscription form (bulletin de souscription) which shall state the
election to exercise the Option, the number of Shares in respect of which the
Option is being exercised (the "Exercised Shares"), and such other
representations and agreements as may be required by the Company pursuant to the
provisions of the Plan. The Exercise Notice shall be signed by the Optionee and
shall be delivered in person or by certified mail to the Company or its
designated representative or by facsimile message to be immediately confirmed by
certified mail to the Company. The Exercise Notice shall be accompanied by
payment of the aggregate Exercise Price as to all Exercised Shares. This Option
shall be deemed to be exercised upon receipt by the Company of such fully
executed Exercise Notice accompanied by such aggregate Exercise Price.
No Shares shall be issued pursuant to the exercise of this Option unless
such issuance and exercise complies with all relevant provisions of law as set
out under Section 14(a) of the Plan.
<PAGE> 10
Upon the issuance of the Shares, the Optionee shall be entitled to receive
such Shares in the form of American Depositary Shares by completing and signing
the appropriate box of the Exercise Notice attached hereto.
3. Method of Payment. Payment of the aggregate Exercise Price shall be
by any of the following, or a combination thereof, at the election
of the Optionee:
(1) wire transfer;
(2) check;
(3) delivery of a properly executed notice together with such
other documentation as the Administrator and the broker, if
applicable, shall require to effect exercise of the Option and
delivery to the Company of the sale or loan proceeds required to pay
the exercise price; or
(4) any combination of the foregoing methods of payment.
4. Non-Transferability of Option. This Option may not be transferred in
any manner otherwise than by will or by the laws of descent or
distribution and may be exercised during the lifetime of the
Optionee only by the Optionee. The terms of the Plan and this Option
Agreement shall be binding upon the executors, administrators,
heirs, successors and assigns of the Optionee.
5. Terms of Option. Subject as provided in the Plan, this Option may be
exercised only within the term set out in the Notice of Grant, and
may be exercised during such term only in accordance with the Plan
and the terms of this Option Agreement.
6. Entire Agreement; Governing Law. The Plan is incorporated herein by
reference. The Plan, this Option Agreement and the Employment
Agreement constitute the entire agreement of the parties with
respect to the subject matter hereof and supersede in their entirety
all prior undertakings and agreements of the Company and Optionee
with respect to the subject matter hereof, and may not be modified
adversely to the Optionee's interest except by means of a writing
signed by the Company and Optionee. In the event of any conflict
between the provisions of this Option Agreement and the provisions
of the Employment Agreement, the Employment Agreement shall, to the
extent of such conflict, control. This Option Agreement is governed
by the laws of the Republic of France.
Any claim or dispute arising under the Plan or this Agreement shall be subject
to the exclusive jurisdiction of the Tribunal de Grande Instance of Creteil.
<PAGE> 11
CONSENT OF SPOUSE
(TO BE SIGNED BY RESIDENT OF CALIFORNIA AND OTHER COMMUNITY PROPERTY STATES)
The undersigned spouse of Optionee has read and hereby approves the terms
and conditions of the Plan and this Option Agreement. In consideration of the
Company's granting his or her spouse the right to subscribe Shares as set forth
in the Plan and this Option Agreement, the undersigned hereby agrees to be
irrevocably bound by the terms and conditions of the Plan and this Option
Agreement and further agrees that any community property interest shall be
similarly bound. The undersigned hereby appoints the undersigned's spouse as
attorney-in-fact for the undersigned with respect to any amendment or exercise
of rights under the Plan or this Option Agreement.
-----------------------------------------
Spouse of Optionee
<PAGE> 12
EXHIBIT A
ILOG S.A.
SOCIETE ANONYME HAVING A SHARE CAPITAL OF 24,798,780 FRANCS
REGISTERED OFFICE: []
1996 STOCK OPTION PLAN
EXERCISE NOTICE
(SHARE SUBSCRIPTION FORM)
ILOG S.A.
[]
Date:
Attention:
1. Exercise of Option. Effective as of today, , 199_, the undersigned
hereby elects to subscribe (_________ ) shares (the "Shares")
of the Common Stock of ILOG S.A. (the "Company") under and pursuant
to the Company's 1996 Stock Option Plan (the "Plan") adopted by the
Board of Directors on May 30, 1996, as amended and the Stock Option
Agreement dated , 199_, (the "Option Agreement"). The subscription
price for the Shares shall be FF , as required by the Option
Agreement.
2. Delivery of Payment. Purchaser herewith delivers to the Company the
full subscription price for the Shares.
3. Representation of Optionee. The Optionee acknowledges that Optionee
has received, read and understood the Plan and the Option Agreement
and agrees to abide by and be bound by their terms and conditions.
4. Rights as Shareholder. Until the issuance (as evidenced by the
appropriate entry on the books of the Company) of the Shares, the
Optionee shall have, as an Optionee, no right to vote or receive
dividends or any other rights as a shareholder shall exist with
respect to the Optioned Stock, except those the Optionee may have as
a shareholder of the Company. No adjustment will be made for rights
in respect of which the record date is prior to the issuance date
for the Shares, except as provided in Section 11 of
<PAGE> 13
the Plan.
5. Tax Consultation. The Optionee understands that Optionee may suffer
adverse tax consequences as a result of Optionee's subscription or
disposition of the Shares. Optionee represents that Optionee has
consulted with any tax consultants Optionee deems advisable in
connection with the subscription or disposition of the Shares. The
Optionee is not relying on the Company for any tax advice.
6. Entire Agreement; Governing Law. The Plan and Option Agreement are
incorporated herein by reference. Reference is made to that certain
Employment Agreement by and between Optionee and ILOG, Inc. dated as
of August __, 1997 (the "Employment Agreement"). This Exercise
Notice, the Plan the Option Agreement and the Employment Agreement
constitute the entire agreement of the parties with respect to the
subject matter hereof and supersede in their entirety all prior
undertakings and agreements of the Company and Optionee with respect
to the subject matter hereof, and may not be modified adversely to
the Optionee's interest except by means of a writing signed by the
Company and Purchaser. In the event of any conflict between the
provisions of this Exercise Notice and the provisions of the
Employment Agreement, the Employment Agreement shall, to the extent
of such conflict, control. This Exercise Notice is governed by the
laws of the Republic of France.
This Exercise Notice is delivered in two originals, one of which shall be
returned to the Optionee.
Submitted by: Accepted by:
OPTIONEE(*) ILOG S.A.
- ----------------------------------
Signature by:
Its: CEO
- ----------------------------------
Print Name
ADDRESS: ADDRESS:
- ---------------------------------- ILOG S.A.
- ----------
(*) The signature of the Optionee must be preceded by the following manuscript
mention "accepted for formal and irrevocable subscription of Shares."
<PAGE> 14
Exhibit C
ILOG, INC.
CONFIDENTIAL INFORMATION AND
INVENTION ASSIGNMENT AGREEMENT
As a condition of my employment with ILOG, INC., its subsidiaries,
affiliates, successors or assigns (together the "COMPANY"), and in consideration
of my employment with the Company and my receipt of the compensation now and
hereafter paid to me by Company, I agree to the following:
1. CONFIDENTIAL INFORMATION.
(a) COMPANY INFORMATION. I agree at all times during the term of
my employment and thereafter, to hold in strictest confidence, and not to use,
except for the benefit of the Company, or to disclose to any person, firm or
corporation without written authorization of the Company, any Confidential
Information of the Company. I understand that "CONFIDENTIAL INFORMATION" means
any Company proprietary information, technical data, trade secrets or know-how,
including, but not limited to, research, product plans, products, services,
customer lists and customers (including, but not limited to, customers of the
Company on whom I called or with whom I became acquainted during the term of my
employment), markets, software, developments, inventions, processes, formulas,
technology, designs, drawings, engineering, hardware configuration information,
marketing, finances or other business information disclosed to me by the Company
either directly or indirectly in writing, orally or by drawings or observation
of parts or equipment. I further understand that Confidential Information does
not include any of the foregoing items which has become publicly known and made
generally available through no wrongful act of mine or of others who were under
confidentiality obligations as to the item or items involved.
(b) FORMER EMPLOYER INFORMATION. I agree that I will not, during
my employment with the Company, improperly use or disclose any proprietary
information or trade secrets of any former or concurrent employer or other
person or entity and that I will not bring onto the premises of the Company any
unpublished document or proprietary information belonging to any such employer,
person or entity unless consented to in writing by such employer, person or
entity.
(c) THIRD PARTY INFORMATION. I recognize that the Company has
received and in the future will receive from third parties their confidential or
proprietary information subject to a duty on the Company's part to maintain the
confidentiality of such information and to use it only for certain limited
purposes. I agree to hold all such confidential or proprietary information in
the strictest confidence and not to disclose it to any person, firm or
corporation or to use it except as necessary in carrying out my work for the
Company consistent with the Company's agreement with such third party.
2. INVENTIONS.
(a) INVENTIONS RETAINED AND LICENSED. I have attached hereto, as
Exhibit A, a list describing all inventions, original works of authorship,
developments, improvements, and trade secrets which were
<PAGE> 15
made by me prior to my employment with CPLEX or the Company (collectively
referred to as "PRIOR INVENTIONS"), which belong to me, which relate to the
Company's proposed business, products or research and development, and which are
not assigned to the Company hereunder; or, if no such list is attached, I
represent that there are no such Prior Inventions. If in the course of my
employment with the Company, I incorporate into a Company product, process or
machine a Prior Invention owned by me or in which I have an interest, the
Company is hereby granted and shall have a nonexclusive, royalty-free,
irrevocable, perpetual, worldwide license to make, have made, modify, use and
sell such Prior Invention as part of or in connection with such product, process
or machine.
(b) ASSIGNMENT OF INVENTIONS. I agree that I will promptly make
full written disclosure to the Company, will hold in trust for the sole right
and benefit of the Company, and hereby assign to the Company, or its designee,
all my right, title, and interest in and to any and all inventions, original
works of authorship, developments, concepts, improvements or trade secrets,
whether or not patentable or registrable under copyright or similar laws, which
I may solely or jointly conceive or develop or reduce to practice, or cause to
be conceived or developed or reduced to practice, during the period of time I am
in the employ of the Company (collectively referred to as "INVENTIONS"), except
as provided in Section 2(e) below. I further acknowledge that, except as
provided in Section 2(e) below, all original works of authorship which are made
by me (solely or jointly with others) within the scope of and during the period
of my employment with the Company and which are protectible by copyright are
"works made for hire," as that term is defined in the United States Copyright
Act.
(c) MAINTENANCE OF RECORDS. I agree to keep and maintain adequate
and current written records of all Inventions made by me (solely or jointly with
others) during the term of my employment with the Company. The records will be
in the form of notes, sketches, drawings, and any other format that may be
specified by the Company. The records will be available to and remain the sole
property of the Company at all times.
(d) PATENT AND COPYRIGHT REGISTRATIONS. I agree to assist the
Company, or its designee, at the Company's expense, in every proper way to
secure the Company's rights in the Inventions and any copyrights, patents, mask
work rights or other intellectual property rights relating thereto in any and
all countries, including the disclosure to the Company of all pertinent
information and data with respect thereto, the execution of all applications,
specifications, oaths, assignments and all other instruments which the Company
shall deem necessary in order to apply for and obtain such rights and in order
to assign and convey to the Company, its successors, assigns, and nominees the
sole and exclusive rights, title and interest in and to such Inventions, and any
copyrights, patents, mask work rights or other intellectual property rights
relating thereto. I further agree that my obligation to execute or cause to be
executed, when it is in my power to do so, any such instrument or papers shall
continue after the termination of this Agreement. If the Company is unable
because of my mental or physical incapacity or for any other reason to secure my
signature to apply for or to pursue any application for any United States or
foreign patents or copyright registrations covering Inventions or original works
of authorship assigned to the Company as above, then I hereby irrevocably
designate and appoint the Company and its duly authorized officers and agents as
my agent and attorney in fact, to act for and in my behalf and stead to execute
and file any such applications and to do all other lawfully permitted acts to
further the prosecution and issuance of letters patent or copyright
registrations thereon with the same legal force and effect as if executed by me.
<PAGE> 16
(e) EXCEPTION TO ASSIGNMENTS. I understand that the provisions of
this Agreement requiring assignment of Inventions to the Company do not apply to
any invention which qualifies fully under the provisions of California Labor
Code Section 2870 (attached hereto as Exhibit A).
3. CONFLICTING EMPLOYMENT. I agree that, during the term of my
employment with the Company, I will not engage in any other employment,
occupation, consulting or other business activity directly related to the
business in which the Company is now involved or becomes involved during the
term of my employment, nor will I engage in any other activities that conflict
with my obligations to the Company provided, however, that the Company
recognizes and agrees to my continued academic association and activities with
respect to Rice University.
4. RETURNING COMPANY DOCUMENTS. I agree that, at the time of leaving
the employ of the Company, I will deliver to the Company (and will not keep in
my possession, recreate or deliver to anyone else) any and all devices, records,
data, notes, reports, proposals, lists, correspondence, specifications, drawings
blueprints, sketches, materials, equipment, other documents or property, or
reproductions of any aforementioned items developed by me pursuant to my
employment with the Company or otherwise belonging to the Company, its
successors or assigns. In the event of the termination of my employment, I agree
to sign and deliver the "Termination Certification" attached hereto as Exhibit
B.
5. NOTIFICATION OF NEW EMPLOYER. In the event that I leave the employ
of the Company, I hereby grant consent to notification by the Company to my new
employer about my rights and obligations under this Agreement.
6. REPRESENTATIONS. I agree to execute any proper oath or verify any
proper document required to carry out the terms of this Agreement. I represent
that my performance of all the terms of this Agreement will not breach any
agreement to keep in confidence proprietary information acquired by me in
confidence or in trust prior to my employment by the Company. I have not entered
into, and I agree I will not enter into, any oral or written agreement in
conflict herewith.
7. ARBITRATION AND EQUITABLE RELIEF.
(a) ARBITRATION. Except as provided in Section 8(b) below, I agree
that any dispute or controversy arising out of or relating to any
interpretation, construction, performance or breach of this Agreement, shall be
settled by arbitration to be held in Santa Clara County, California, in
accordance with the rules then in effect of the American Arbitration
Association. The arbitrator may grant injunctions or other relief in such
dispute or controversy. The decision of the arbitrator shall be final,
conclusive and binding on the parties to the arbitration. Judgment may be
entered on the arbitrator's decision in any court having jurisdiction. The
Company and I shall each pay one-half of the costs and expenses of such
arbitration, and each of us shall separately pay our counsel fees and expenses.
(b) EQUITABLE REMEDIES. I agree that it would be impossible or
inadequate to measure and calculate the Company's damages from any breach of the
covenants set forth in Sections 1, 2, and 4 herein. Accordingly, I agree that if
I breach any of such Sections, the Company will have available, in addition to
any other right or remedy available, the right to obtain an injunction from a
court of competent jurisdiction restraining such breach or threatened breach and
to specific performance of any
<PAGE> 17
such provision of this Agreement.
8. GENERAL PROVISIONS.
(a) GOVERNING LAW; CONSENT TO PERSONAL JURISDICTION. This
Agreement will be governed by the laws of the State of California. I hereby
expressly consent to the personal jurisdiction of the state and federal courts
located in California for any lawsuit filed there against me by the Company
arising from or relating to this Agreement.
(b) ENTIRE AGREEMENT. This Agreement sets forth the entire
agreement and understanding between the Company and me relating to the subject
matter herein and merges all prior discussions between us. No modification of or
amendment to this Agreement, nor any waiver of any rights under this agreement,
will be effective unless in writing signed by the party to be charged. Any
subsequent change or changes in my duties, salary or compensation will not
affect the validity or scope of this Agreement.
(c) SEVERABILITY. If one or more of the provisions in this
Agreement are deemed void by law, then the remaining provisions will continue in
full force and effect.
(d) SUCCESSORS AND ASSIGNS. This Agreement will be binding upon my
heirs, executors, administrators and other legal representatives and will be for
the benefit of the Company, its successors, and its assigns.
Date: August__, 1997
-----------------------------------
Signature
Employee
- ------------------------
Witness
<PAGE> 18
EXHIBIT A
CALIFORNIA LABOR CODE SECTION 2870
EMPLOYMENT AGREEMENTS; ASSIGNMENT OF RIGHTS
"(a) Any provision in an employment agreement which provides that an
employee shall assign, or offer to assign, any of his or her rights in an
invention to his or her employer shall not apply to an invention that the
employee developed entirely on his or her own time without using the employer's
equipment, supplies, facilities, or trade secret information except for those
inventions that either:
(1) Relate at the time of conception or reduction to practice of the
invention to the employer's business, or actual or demonstrably anticipated
research or development of the employer.
(2) Result from any work performed by the employee for the employer.
(b) To the extent a provision in an employment agreement purports to
require an employee to assign an invention otherwise excluded from being
required to be assigned under subdivision (a), the provision is against the
public policy of this state and is unenforceable."
<PAGE> 19
EXHIBIT B
ILOG, INC.
TERMINATION CERTIFICATION
This is to certify that I do not have in my possession, nor have I failed
to return, any devices, records, data, notes, reports, proposals, lists,
correspondence, specifications, drawings, blueprints, sketches, materials,
equipment, other documents or property, or reproductions of any aforementioned
items belonging to ILOG, Inc., its subsidiaries, affiliates, successors or
assigns (together, the "COMPANY").
I further certify that I have complied with all the terms of the Company's
Confidential Information and Invention Assignment Agreement signed by me,
including the reporting of any inventions and original works of authorship (as
defined therein), conceived or made by me (solely or jointly with others)
covered by that agreement.
I further agree that, in compliance with the Confidential Information and
Invention Assignment Agreement, I will preserve as confidential all trade
secrets, confidential knowledge, data or other proprietary information relating
to products, processes, know-how, designs, formulas, developmental or
experimental work, computer programs, data bases, other original works of
authorship, customer lists, business plans, financial information or other
subject matter pertaining to any business of the Company or any of its
employees, clients, consultants or licensees.
I further agree that for twelve (12) months from this date, I will not
hire any employees of the Company and I will not solicit, induce, recruit or
encourage any of the Company's employees to leave their employment.
Date: ___________
-------------------------------------------
(Employee's Signature)
-------------------------------------------
(Type/Print Employee's Name)
<PAGE> 1
EXHIBIT 4.24
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "AGREEMENT"), dated as of the 20th day
of August, 1997 the ("EFFECTIVE DATE"), by and between ILOG, Inc., a California
corporation (the "COMPANY") and the undersigned employee ("EMPLOYEE") of
Company.
AGREEMENT
NOW, THEREFORE, IT IS HEREBY AGREED by and among the parties hereto as
follows:
1. EMPLOYMENT BY COMPANY; DUTIES.
(a) Employment. Subject to the terms and conditions set forth
herein, the Company hereby agrees to employ Employee in the position of
Strategic Marketing Director, having all the duties and responsibilities
customarily associated with such positions, subject to modification from time to
time by the Company, and Employee hereby accepts such employment by the Company.
Employee's duties shall initially include the strategic market planning for
CPLEX-related products, and Employee shall report to the Company's Executive
Vice President, CPLEX Business. With respect to any modifications of Employee's
position and/or duties during the term of Employee's employment hereunder, the
Company shall give due consideration to Employee's skills and experience in
determining the appropriate position and duties of Employee and shall not,
without Employee's consent, modify Employee's position or duties in a manner
inconsistent with Employee's status as a director-level employee of the Company;
provided, however, that the foregoing shall in no way limit the ability of the
Company to terminate Employee's employment at any time for any reason or for no
reason. Such employment shall commence on the Effective Date and shall continue
until terminated as provided in Paragraph 3 hereof. Employee shall not, without
the prior written consent of Company, directly or indirectly, alone or as part
of any group, association or organization, be actively engaged in or concerned
with any other duties or pursuits which interfere with the performance of
Employee's duties to Company or which may be contrary to the best interests of
the Company.
(b) Company Policies. The employment relationship between the
parties shall also be governed by the general employment policies and practices
of the Company now in effect or which may become effective in the future,
including those relating to the protection of confidential information and trade
secrets, except that when the terms of this Agreement differ from or are in
conflict with the Company's general employment policies or practices, this
Agreement shall control.
2. COMPENSATION AND BENEFITS.
(a) Base Salary; Bonuses; Compensation for Part-Time
Employment. As compensation for the services to be rendered by Employee during
her Full-Time Employment hereunder, including all services rendered to entities
affiliated with the Company, the Company agrees to pay Employee in accordance
with the Company's regular payroll practices, direct salary compensation at the
rate of $100,000 per year (as adjusted from time to time pursuant to the terms
hereof, the "BASE SALARY"), commencing on the Effective Date. In addition,
Employee shall be eligible to receive a performance bonus in the target amount
of $30,000, with the actual bonus to be determined based on the achievement of
performance criteria to be determined by mutual agreement
<PAGE> 2
of the Company and Employee (as adjusted from time to time pursuant to the terms
hereof, the "BONUS"). For purposes of this Agreement, "FULL-TIME EMPLOYMENT"
shall mean all periods of time during which Employee is devoting all of
Employee's working time, attention and energies to performing Employee's duties
to the Company. In the event Employee desires to reduce the level of Employee's
time, attention or energies devoted to the Company to below Full-Time Employment
levels, Employee shall give the Company sixty day's written notice of such
request and the Company shall not unreasonably deny such request. Such notice
shall quantify Employee's desired level of time, attention and energies to be
devoted to the Company and the effective date of such reduction (any such
periods of time during which such reduction are in effect, "PART-TIME
EMPLOYMENT"). Employee may, subject to the consent of the Company which consent
shall not be unreasonably withheld, request to resume Full-Time Employment or
further adjust the level of Employee's Part-Time Employment upon sixty day's
notice. During any period of Part-Time Employment, Employee's Base Salary and
Bonus shall be proportionately adjusted by the Company in good faith. Such
good-faith adjustments by the Company shall be conclusive and binding on
Employee.
(b) Employee Benefits. Employee shall be eligible to
participate in the employee benefit plans and arrangements which are available
or which become available, in the discretion of the Company's Board of
Directors, to other employees of the Company, subject in each case to the
generally applicable terms and conditions of the plan or arrangement in question
and to the determination of any committee administering such plan or
arrangement. The Company's presently available benefits are listed on Exhibit A
hereto. Employee's benefits shall not be reduced during periods of Part-Time
Employment, except that benefits that are based on levels of salary and bonus
compensation, such as moneys paid during periods of paid vacation, shall be
proportionately adjusted by the Company in good faith.
(c) Annual Compensation Review. Employee and the Company shall
review Employee's Base Salary and Bonus structure annually and may make mutually
agreeable adjustments at such times.
3. TERM AND TERMINATION.
(a) Term; Effect of Termination. Unless terminated by either
party as provided below, this Agreement shall remain in full force and effect
until the date three years after the Effective Date (such three year period, the
"DEFAULT TERM") and may be extended for one annual term upon the mutual
agreement of Employee and the Company (any such extension period, the "EXTENDED
TERM"). Provisions of this Agreement that expressly relate to periods of time
following the term of this Agreement or of Employee's employment shall survive
any termination or expiration of this Agreement or of Employee's employment with
the Company.
(b) Limitation of Liability upon Termination. If Employee's
employment terminates (or is terminated) for any reason (or for no reason),
Employee shall not be entitled to any payments, benefits, damages, awards or
compensation other than as provided in this Agreement, or as may otherwise be
available in accordance with the Company's established employee plans and
policies at the time of termination. Subject to the terms and conditions hereof,
Employee acknowledges that Employee's employment hereunder shall be on an
at-will basis and that Company may terminate Employee's employment hereunder at
any time with or without Cause.
<PAGE> 3
(c) Termination for Cause; Definition of "Cause". Employee's
employment with the Company may be terminated for Cause at any time by the
Company, upon reasonable notice to Employee of the circumstances leading to such
termination for Cause. For the purpose of this Agreement, "CAUSE" shall mean (i)
the substantial and continuing failure to render services to the Company or its
affiliated entities in accordance with Employee's assigned duties (other than as
a result of Employee's Disability, as defined below, or other medically
determinable serious physical impairment), as determined by the Board of
Directors of the Company's parent entity, if such failure remains uncured for a
period of 30 days following delivery of notice to Employee of such failure; (ii)
the conviction of a felony; (iii) gross negligence, dishonesty, breach of
fiduciary duty or material breach of the terms of any confidentiality,
noncompetition or other agreement in favor of the Company or its affiliated
entities; (iv) the commission of an act of fraud or embezzlement which results
in loss, damage or injury to the Company or its affiliated entities, whether
directly or indirectly; or (v) the commission of an act which constitutes unfair
competition with the Company or its affiliated entities or which induces any
customer of the Company or its affiliated entities to break a contract with the
Company or its affiliated entities.
(d) Continuation of Option Vesting upon Certain Events. In
connection with the commencement of Employee's employment with the Company,
Employee has been or will be granted an option to purchase up to 200,000 shares
of ILOG S.A. under its 1996 Stock Option Plan pursuant to an option agreement in
substantially the form attached hereto as Exhibit B (the "OPTION"). Upon
termination of Employee's employment for any reason, Employee shall have the
right to exercise, within 90 days of such termination, the portion of Employee's
Option that is then-exercisable pursuant to the terms and conditions of such
option agreement and such option plan; provided, however, that, notwithstanding
any term of such option agreement or such option plan to the contrary, if at any
time prior to such time as the Option becomes fully vested and exercisable,
either (X) the Company terminates Employee's employment with the Company without
Employee's consent other than for Cause or (Y) Employee dies or becomes Disabled
(as defined below) then, in each case, Employee's Option shall (i) continue to
vest until fully vested and (ii) continue to be exercisable to the extent
vested, in each case, as if Employee had remained alive, not Disabled and
employed by the Company throughout the term of the Option.
(e) Continuation of Salary, Bonus and Benefits upon
Termination without Cause. If the Company terminates Employee's employment with
the Company during the Default Term without Employee's consent other than for
Cause, then, during the remaining Default Term, the Company shall continue to
pay Employee the annual Base Salary and target Bonus in effect immediately prior
to such termination and shall continue to provide Employee with benefits
substantially equivalent to those being provided immediately prior to such
termination.
(f) Definitions of Disability and Disabled. For purposes of
this Agreement, the terms "Disabled" and "Disability" shall refer to a state of
Employee's "permanent and total disability" as such term is defined in Section
22(e)(3) of the Internal Revenue Code of 1986, as amended.
4. PROPRIETARY INFORMATION; NONINTERFERENCE. As a condition to the
effectiveness of this Agreement, Employee shall execute the Proprietary
Information and Invention Assignment Agreement attached hereto as Exhibit C.
<PAGE> 4
5. MISCELLANEOUS.
(a) Notices. Any notice required or permitted hereunder shall
be given in writing and shall be deemed effectively given upon personal delivery
or upon the third day after deposit with the United States Post Office, by
registered or certified mail, postage prepaid, return receipt requested,
addressed to the Company or Employee at the addresses set forth on the signature
page of this Agreement, or at such other address as such party may designate by
ten (10) days advance written notice to the other party.
(b) Severability. Nothing in this Agreement shall be construed
so as to require the commission of any act contrary to law and wherever there is
any conflict between any provision of this Agreement and any law, statute,
ordinance, order or regulation, the latter shall prevail, but in such event any
provision of this Agreement shall be curtailed and limited only to the extent
necessary to bring it within applicable legal requirements. If any provision of
this Agreement should be held invalid or unenforceable, the remaining provisions
shall be unaffected by such a holding.
(c) Tax Matters. Employee has consulted Employee's own
independent tax and legal advisors with respect to the transactions contemplated
by this Agreement and is not relying in any respect on the Company or any
officer, employee, or other agent or representative of the Company to provide
any advice with respect to the federal, state, local or foreign tax consequences
of the transactions contemplated hereby. Employee alone will bear Employee's tax
consequences, if any, associated with the transactions contemplated hereby and
will not seek any reimbursement in connection with any such tax consequences
from the Company.
(d) Complete Agreement. This Agreement and the exhibits
attached hereto contain the entire agreement and understanding between the
parties relating to the subject matter hereof, and supersedes any prior
understandings, agreements, or representations by or between the parties,
written or oral, relating to the subject matter hereof.
(e) Successors and Assigns. This Agreement and the rights and
obligations of the parties hereto shall bind and inure to the benefit of any
successor or successors of the Company by way of reorganization, merger or
consolidation and any assignee of all or substantially all of its business and
assets, but except as to any such successor or assignee of the Company, neither
this Agreement nor any rights or benefits hereunder may be assigned by the
Company or Employee.
(f) Amendments. Notwithstanding anything to the contrary
contained in this Agreement, the parties to this Agreement may make any
modification or amendment to this Agreement only by a mutual agreement in
writing.
(g) Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of California as such laws
are applied to contracts entered into and to be performed entirely within the
State of California.
<PAGE> 5
IN WITNESS WHEREOF, the parties have executed and delivered this
Agreement on the day and year first above written.
ILOG, INC.
By: /s/ Roger Friedberger
------------------------------------------
Name: Roger Friedberger
----------------------------------------
Title: Director and Chief Financial Officer
---------------------------------------
EMPLOYEE
/s/ Janet Lowe
---------------------------------------------
(Signature)
Janet Lowe
---------------------------------------------
(Print Name)
---------------------------------------------
---------------------------------------------
(Print Address)
---------------------------------------------
(Print Telephone Number)
<PAGE> 6
Exhibit A
While Employee remains employed with the Company, Employee shall be eligible for
all benefits offered to Company employees generally, currently including Aetna
Medical HMO/PPO coverage, dental and vision insurance plans, Accidental Death &
Disability Insurance, Section 125 pre-tax medical and dependent care expense
reimbursement plan, and 401(k) plan. In addition, Employee shall be entitled to
paid vacation during each year of employment of the greater of (i) four weeks or
(ii) the then-current annual paid vacation allowed by the Company's standard
benefit policy (currently three weeks).
<PAGE> 7
Exhibit B
ILOG S.A.
1996 STOCK OPTION GRANT AGREEMENT
PART I
NOTICE OF STOCK OPTION GRANT
Ms. Janet Lowe
----------------
You have been granted an Option to subscribe Shares of the
Company, subject to the terms and conditions of the 1996 Stock Option Plan, as
amended (the "Plan"), and this Option Agreement. Unless otherwise defined
herein, the terms defined in the Plan shall have the same defined meanings in
this Option Agreement.
<TABLE>
<S> <C>
Grant Number: SO96/97/
Date of Grant: August 20, 1997
Vesting Commencement Date: August 20, 1997
Vesting period: Four years
Share Per Value: FF 4.00
Exercise Price per Share: FF 36.84
Total Number of Shares Granted: 200,000
Total Exercise Price: FF 7,368,000
Type of Option: Incentive Stock Option
Term/Expiration Date: Ten Years
</TABLE>
<PAGE> 8
VESTING SCHEDULE:
This Option may be exercised, in whole or in part, in
accordance with the following schedule:
25% of the Shares subject to the Option shall vest twelve
months after the Vesting Commencement Date, and 1/48 of the Shares subject to
the Option shall vest each month thereafter.
Except as may be provided in that certain Employment Agreement
by and between Optionee and ILOG, Inc. dated as of August 20, 1997 (the
"Employment Agreement"), vesting shall continue only during Optionee's
Continuous Status as a Beneficiary.
TERMINATION PERIOD:
Except as provided in the Employment Agreement, this Option
may be exercised for ninety (90) days after termination of the Optionee's
employment or term of office with the Company or an Affiliated Company as the
case may be. Upon the Death or Disability of the Optionee, this Option may be
exercised for such longer period as provided in the Plan or the Employment
Agreement. Save as provided in the Plan, in no event shall this Option be
exercised later than the Term/Expiration Date as provided above.
By his signature and the signature of the Company's
representative below, the Optionee and the Company agree that this Option is
granted under and, except to the extent inconsistent with the Employment
Agreement, governed by the terms and conditions of the Plan and this Option
Agreement. The Optionee has reviewed the Plan and this Option Agreement in their
entirety, has had the opportunity to obtain advice of counsel prior to executing
this Option Agreement and fully understands all provisions of the Plan and
Option Agreement. The Optionee hereby agrees to accept as binding, conclusive
and final all decisions or interpretations of the Administrator upon any
questions relating to the Plan and Option Agreement which are not governed by
the Employment Agreement. The Optionee further agrees to notify the Company upon
any change in the residence address indicated below.
The Company and the Optionee recognize that the Plan has been
prepared both in the French and the English language. The French version is the
version that binds the parties, notwithstanding this, the English version
represents an acceptable translation and, consequently, no official translation
will be required for the interpretation of this agreement.
OPTIONEE: ILOG S.A.
- ------------------------------ By:_____________________________
Signature
Print Name Name: Roger Friedberger
---------------------------
Title: Chief Financial Officer
--------------------------
Residence Address
- ------------------------------
<PAGE> 9
ILOG S. A.
1996 STOCK OPTION GRANT AGREEMENT
PART II
TERMS AND CONDITIONS
1. Grant of Option. The Plan Administrator of the Company hereby
grants to the Optionee named in the Notice of Grant attached as Part I of this
Agreement (the "Optionee"), an option (the "Option") to subscribe the number of
Shares, as set forth in the Notice of Grant, at the exercise price per Share set
forth in the Notice of Grant (the "Exercise Price"), subject to the terms and
conditions of the 1996 Stock Option Plan, as amended, which is incorporated
herein by reference. In the event of a conflict between the terms and conditions
of the Plan and the terms and conditions of this Option Agreement, the terms and
conditions of the Plan shall prevail.
If designated in the Notice of Grant as an Incentive Stock Option, this
Option is intended to qualify as an Incentive Stock Option under Section 422 of
the Code. However, if this Option is intended to be an Incentive Stock Option,
to the extent that it exceeds the $100,000 rule of Code Section 422(d) it shall
be treated as a Non-statutory Stock Option.
2. Exercise of Option.
(a) Right to Exercise. This Option is exercisable during its term in
accordance with the Vesting Schedule set out in the Notice of Grant and the
applicable provisions of the Plan and this Option Agreement. In the event of
Optionee's death, disability or other termination of Optionee's employment or
term of office, the exercisability of the Option is governed by the applicable
provisions of the Plan and this Option Agreement.
(b) Method of Exercise. This Option is exercisable by delivery of an
exercise notice, in the form attached hereto (the "Exercise Notice"), comprising
a share subscription form (bulletin de souscription) which shall state the
election to exercise the Option, the number of Shares in respect of which the
Option is being exercised (the "Exercised Shares"), and such other
representations and agreements as may be required by the Company pursuant to the
provisions of the Plan. The Exercise Notice shall be signed by the Optionee and
shall be delivered in person or by certified mail to the Company or its
designated representative or by facsimile message to be immediately confirmed by
certified mail to the Company. The Exercise Notice shall be accompanied by
payment of the aggregate Exercise Price as to all Exercised Shares. This Option
shall be deemed to be exercised upon receipt by the Company of such fully
executed Exercise Notice accompanied by such aggregate Exercise Price.
No Shares shall be issued pursuant to the exercise of this
Option unless such issuance and exercise complies with all relevant provisions
of law as set out under Section 14(a) of the Plan.
<PAGE> 10
Upon the issuance of the Shares, the Optionee shall be
entitled to receive such Shares in the form of American Depositary Shares by
completing and signing the appropriate box of the Exercise Notice attached
hereto.
3. Method of Payment. Payment of the aggregate Exercise Price
shall be by any of the following, or a combination thereof, at the election of
the Optionee:
(1) wire transfer;
(2) check;
(3) delivery of a properly executed notice together with such
other documentation as the Administrator and the broker, if
applicable, shall require to effect exercise of the Option and
delivery to the Company of the sale or loan proceeds required
to pay the exercise price; or
(4) any combination of the foregoing methods of payment.
4. Non-Transferability of Option. This Option may not be
transferred in any manner otherwise than by will or by the laws of descent or
distribution and may be exercised during the lifetime of the Optionee only by
the Optionee. The terms of the Plan and this Option Agreement shall be binding
upon the executors, administrators, heirs, successors and assigns of the
Optionee.
5. Terms of Option. Subject as provided in the Plan, this Option
may be exercised only within the term set out in the Notice of Grant, and may be
exercised during such term only in accordance with the Plan and the terms of
this Option Agreement.
6. Entire Agreement; Governing Law. The Plan is incorporated
herein by reference. The Plan, this Option Agreement and the Employment
Agreement constitute the entire agreement of the parties with respect to the
subject matter hereof and supersede in their entirety all prior undertakings and
agreements of the Company and Optionee with respect to the subject matter
hereof, and may not be modified adversely to the Optionee's interest except by
means of a writing signed by the Company and Optionee. In the event of any
conflict between the provisions of this Option Agreement and the provisions of
the Employment Agreement, the Employment Agreement shall, to the extent of such
conflict, control. This Option Agreement is governed by the laws of the Republic
of France.
Any claim or dispute arising under the Plan or this Agreement shall be subject
to the exclusive jurisdiction of the Tribunal de Grande Instance of Creteil.
<PAGE> 11
CONSENT OF SPOUSE
(TO BE SIGNED BY RESIDENT OF CALIFORNIA AND OTHER COMMUNITY PROPERTY STATES)
The undersigned spouse of Optionee has read and hereby
approves the terms and conditions of the Plan and this Option Agreement. In
consideration of the Company's granting his or her spouse the right to subscribe
Shares as set forth in the Plan and this Option Agreement, the undersigned
hereby agrees to be irrevocably bound by the terms and conditions of the Plan
and this Option Agreement and further agrees that any community property
interest shall be similarly bound. The undersigned hereby appoints the
undersigned's spouse as attorney-in-fact for the undersigned with respect to any
amendment or exercise of rights under the Plan or this Option Agreement.
------------------------------
Spouse of Optionee
<PAGE> 12
EXHIBIT A
ILOG S.A.
SOCIETE ANONYME HAVING A SHARE CAPITAL OF 24,798,780 FRANCS
REGISTERED OFFICE: []
1996 STOCK OPTION PLAN
EXERCISE NOTICE
(SHARE SUBSCRIPTION FORM)
ILOG S.A.
[ ]
Date:
Attention:
1. Exercise of Option. Effective as of today, , 199_,
the undersigned hereby elects to subscribe ( ) shares (the
"Shares") of the Common Stock of ILOG S.A. (the "Company")
under and pursuant to the Company's 1996 Stock Option Plan
(the "Plan") adopted by the Board of Directors on May 30,
1996, as amended and the Stock Option Agreement dated , 199_,
(the "Option Agreement"). The subscription price for the
Shares shall be FF , as required by the Option Agreement.
2. Delivery of Payment. Purchaser herewith delivers to the
Company the full subscription price for the Shares.
3. Representation of Optionee. The Optionee acknowledges that
Optionee has received, read and understood the Plan and the
Option Agreement and agrees to abide by and be bound by their
terms and conditions.
4. Rights as Shareholder. Until the issuance (as evidenced by the
appropriate entry on the books of the Company) of the Shares,
the Optionee shall have, as an Optionee, no right to vote or
receive dividends or any other rights as a shareholder shall
exist with respect to the Optioned Stock, except those the
Optionee may have as a shareholder of the Company. No
adjustment will be made for rights in respect of which the
record date is prior to the issuance date for the Shares,
except as provided in Section 11 of
<PAGE> 13
the Plan.
5. Tax Consultation. The Optionee understands that Optionee may
suffer adverse tax consequences as a result of Optionee's
subscription or disposition of the Shares. Optionee represents
that Optionee has consulted with any tax consultants Optionee
deems advisable in connection with the subscription or
disposition of the Shares. The Optionee is not relying on the
Company for any tax advice.
6. Entire Agreement; Governing Law. The Plan and Option Agreement
are incorporated herein by reference. Reference is made to
that certain Employment Agreement by and between Optionee and
ILOG, Inc. dated as of August __, 1997 (the "Employment
Agreement"). This Exercise Notice, the Plan the Option
Agreement and the Employment Agreement constitute the entire
agreement of the parties with respect to the subject matter
hereof and supersede in their entirety all prior undertakings
and agreements of the Company and Optionee with respect to the
subject matter hereof, and may not be modified adversely to
the Optionee's interest except by means of a writing signed by
the Company and Purchaser. In the event of any conflict
between the provisions of this Exercise Notice and the
provisions of the Employment Agreement, the Employment
Agreement shall, to the extent of such conflict, control. This
Exercise Notice is governed by the laws of the Republic of
France.
This Exercise Notice is delivered in two originals, one of which shall be
returned to the Optionee.
Submitted by: Accepted by:
OPTIONEE(*) ILOG S.A.
- ------------------------------------
Signature by:
- ------------------------------------ Its: CEO
Print Name
ADDRESS: ADDRESS:
ILOG S.A.
- ------------------------------------
(*) The signature of the Optionee must be preceded by the following manuscript
mention "accepted for formal and irrevocable subscription of _________Shares."
<PAGE> 14
Exhibit C
ILOG, INC.
CONFIDENTIAL INFORMATION AND
INVENTION ASSIGNMENT AGREEMENT
As a condition of my employment with ILOG, INC., its subsidiaries,
affiliates, successors or assigns (together the "COMPANY"), and in consideration
of my employment with the Company and my receipt of the compensation now and
hereafter paid to me by Company, I agree to the following:
1. CONFIDENTIAL INFORMATION.
(a) COMPANY INFORMATION. I agree at all times during the term of my
employment and thereafter, to hold in strictest confidence, and not to use,
except for the benefit of the Company, or to disclose to any person, firm or
corporation without written authorization of the Company, any Confidential
Information of the Company. I understand that "CONFIDENTIAL INFORMATION" means
any Company proprietary information, technical data, trade secrets or know-how,
including, but not limited to, research, product plans, products, services,
customer lists and customers (including, but not limited to, customers of the
Company on whom I called or with whom I became acquainted during the term of my
employment), markets, software, developments, inventions, processes, formulas,
technology, designs, drawings, engineering, hardware configuration information,
marketing, finances or other business information disclosed to me by the Company
either directly or indirectly in writing, orally or by drawings or observation
of parts or equipment. I further understand that Confidential Information does
not include any of the foregoing items which has become publicly known and made
generally available through no wrongful act of mine or of others who were under
confidentiality obligations as to the item or items involved.
(b) FORMER EMPLOYER INFORMATION. I agree that I will not, during my
employment with the Company, improperly use or disclose any proprietary
information or trade secrets of any former or concurrent employer or other
person or entity and that I will not bring onto the premises of the Company any
unpublished document or proprietary information belonging to any such employer,
person or entity unless consented to in writing by such employer, person or
entity.
(c) THIRD PARTY INFORMATION. I recognize that the Company has
received and in the future will receive from third parties their confidential or
proprietary information subject to a duty on the Company's part to maintain the
confidentiality of such information and to use it only for certain limited
purposes. I agree to hold all such confidential or proprietary information in
the strictest confidence and not to disclose it to any person, firm or
corporation or to use it except as necessary in carrying out my work for the
Company consistent with the Company's agreement with such third party.
2. INVENTIONS.
(a) INVENTIONS RETAINED AND LICENSED. I have attached hereto, as
Exhibit A, a list describing all inventions, original works of authorship,
developments, improvements, and trade secrets which were made by me prior to my
employment with CPLEX or the Company (collectively referred to as "PRIOR
INVENTIONS"), which belong to me, which relate to the Company's proposed
business, products or
<PAGE> 15
research and development, and which are not assigned to the Company hereunder;
or, if no such list is attached, I represent that there are no such Prior
Inventions. If in the course of my employment with the Company, I incorporate
into a Company product, process or machine a Prior Invention owned by me or in
which I have an interest, the Company is hereby granted and shall have a
nonexclusive, royalty-free, irrevocable, perpetual, worldwide license to make,
have made, modify, use and sell such Prior Invention as part of or in connection
with such product, process or machine.
(b) ASSIGNMENT OF INVENTIONS. I agree that I will promptly make full
written disclosure to the Company, will hold in trust for the sole right and
benefit of the Company, and hereby assign to the Company, or its designee, all
my right, title, and interest in and to any and all inventions, original works
of authorship, developments, concepts, improvements or trade secrets, whether or
not patentable or registrable under copyright or similar laws, which I may
solely or jointly conceive or develop or reduce to practice, or cause to be
conceived or developed or reduced to practice, during the period of time I am in
the employ of the Company (collectively referred to as "INVENTIONS"), except as
provided in Section 2(e) below. I further acknowledge that, except as provided
in Section 2(e) below, all original works of authorship which are made by me
(solely or jointly with others) within the scope of and during the period of my
employment with the Company and which are protectible by copyright are "works
made for hire," as that term is defined in the United States Copyright Act.
(c) MAINTENANCE OF RECORDS. I agree to keep and maintain adequate and
current written records of all Inventions made by me (solely or jointly with
others) during the term of my employment with the Company. The records will be
in the form of notes, sketches, drawings, and any other format that may be
specified by the Company. The records will be available to and remain the sole
property of the Company at all times.
(d) PATENT AND COPYRIGHT REGISTRATIONS. I agree to assist the
Company, or its designee, at the Company's expense, in every proper way to
secure the Company's rights in the Inventions and any copyrights, patents, mask
work rights or other intellectual property rights relating thereto in any and
all countries, including the disclosure to the Company of all pertinent
information and data with respect thereto, the execution of all applications,
specifications, oaths, assignments and all other instruments which the Company
shall deem necessary in order to apply for and obtain such rights and in order
to assign and convey to the Company, its successors, assigns, and nominees the
sole and exclusive rights, title and interest in and to such Inventions, and any
copyrights, patents, mask work rights or other intellectual property rights
relating thereto. I further agree that my obligation to execute or cause to be
executed, when it is in my power to do so, any such instrument or papers shall
continue after the termination of this Agreement. If the Company is unable
because of my mental or physical incapacity or for any other reason to secure my
signature to apply for or to pursue any application for any United States or
foreign patents or copyright registrations covering Inventions or original works
of authorship assigned to the Company as above, then I hereby irrevocably
designate and appoint the Company and its duly authorized officers and agents as
my agent and attorney in fact, to act for and in my behalf and stead to execute
and file any such applications and to do all other lawfully permitted acts to
further the prosecution and issuance of letters patent or copyright
registrations thereon with the same legal force and effect as if executed by me.
(e) EXCEPTION TO ASSIGNMENTS. I understand that the provisions of
this Agreement requiring assignment of Inventions to the Company do not apply to
any invention which qualifies fully under the
<PAGE> 16
provisions of California Labor Code Section 2870 (attached hereto as Exhibit A).
3. CONFLICTING EMPLOYMENT. I agree that, during the term of my employment
with the Company, I will not engage in any other employment, occupation,
consulting or other business activity directly related to the business in which
the Company is now involved or becomes involved during the term of my
employment, nor will I engage in any other activities that conflict with my
obligations to the Company provided, however, that the Company recognizes and
agrees to my continued academic association and activities with respect to Rice
University.
4. RETURNING COMPANY DOCUMENTS. I agree that, at the time of leaving the
employ of the Company, I will deliver to the Company (and will not keep in my
possession, recreate or deliver to anyone else) any and all devices, records,
data, notes, reports, proposals, lists, correspondence, specifications, drawings
blueprints, sketches, materials, equipment, other documents or property, or
reproductions of any aforementioned items developed by me pursuant to my
employment with the Company or otherwise belonging to the Company, its
successors or assigns. In the event of the termination of my employment, I agree
to sign and deliver the "Termination Certification" attached hereto as Exhibit
B.
5. NOTIFICATION OF NEW EMPLOYER. In the event that I leave the employ of
the Company, I hereby grant consent to notification by the Company to my new
employer about my rights and obligations under this Agreement.
6. REPRESENTATIONS. I agree to execute any proper oath or verify any
proper document required to carry out the terms of this Agreement. I represent
that my performance of all the terms of this Agreement will not breach any
agreement to keep in confidence proprietary information acquired by me in
confidence or in trust prior to my employment by the Company. I have not entered
into, and I agree I will not enter into, any oral or written agreement in
conflict herewith.
7. ARBITRATION AND EQUITABLE RELIEF.
(a) ARBITRATION. Except as provided in Section 8(b) below, I agree
that any dispute or controversy arising out of or relating to any
interpretation, construction, performance or breach of this Agreement, shall be
settled by arbitration to be held in Santa Clara County, California, in
accordance with the rules then in effect of the American Arbitration
Association. The arbitrator may grant injunctions or other relief in such
dispute or controversy. The decision of the arbitrator shall be final,
conclusive and binding on the parties to the arbitration. Judgment may be
entered on the arbitrator's decision in any court having jurisdiction. The
Company and I shall each pay one-half of the costs and expenses of such
arbitration, and each of us shall separately pay our counsel fees and expenses.
(b) EQUITABLE REMEDIES. I agree that it would be impossible or
inadequate to measure and calculate the Company's damages from any breach of the
covenants set forth in Sections 1, 2, and 4 herein. Accordingly, I agree that if
I breach any of such Sections, the Company will have available, in addition to
any other right or remedy available, the right to obtain an injunction from a
court of competent jurisdiction restraining such breach or threatened breach and
to specific performance of any such provision of this Agreement.
<PAGE> 17
8. GENERAL PROVISIONS.
(a) GOVERNING LAW; CONSENT TO PERSONAL JURISDICTION. This Agreement
will be governed by the laws of the State of California. I hereby expressly
consent to the personal jurisdiction of the state and federal courts located in
California for any lawsuit filed there against me by the Company arising from or
relating to this Agreement.
(b) ENTIRE AGREEMENT. This Agreement sets forth the entire agreement
and understanding between the Company and me relating to the subject matter
herein and merges all prior discussions between us. No modification of or
amendment to this Agreement, nor any waiver of any rights under this agreement,
will be effective unless in writing signed by the party to be charged. Any
subsequent change or changes in my duties, salary or compensation will not
affect the validity or scope of this Agreement.
(c) SEVERABILITY. If one or more of the provisions in this Agreement
are deemed void by law, then the remaining provisions will continue in full
force and effect.
(d) SUCCESSORS AND ASSIGNS. This Agreement will be binding upon my
heirs, executors, administrators and other legal representatives and will be for
the benefit of the Company, its successors, and its assigns.
Date: August__, 1997
-----------------------------------
Signature
Employee
- ------------------------
Witness
<PAGE> 18
EXHIBIT A
CALIFORNIA LABOR CODE SECTION 2870
EMPLOYMENT AGREEMENTS; ASSIGNMENT OF RIGHTS
"(a) Any provision in an employment agreement which provides that an
employee shall assign, or offer to assign, any of his or her rights in an
invention to his or her employer shall not apply to an invention that the
employee developed entirely on his or her own time without using the employer's
equipment, supplies, facilities, or trade secret information except for those
inventions that either:
(1) Relate at the time of conception or reduction to practice of the
invention to the employer's business, or actual or demonstrably anticipated
research or development of the employer.
(2) Result from any work performed by the employee for the employer.
(b) To the extent a provision in an employment agreement purports to
require an employee to assign an invention otherwise excluded from being
required to be assigned under subdivision (a), the provision is against the
public policy of this state and is unenforceable."
<PAGE> 19
EXHIBIT B
ILOG, INC.
TERMINATION CERTIFICATION
This is to certify that I do not have in my possession, nor have I failed
to return, any devices, records, data, notes, reports, proposals, lists,
correspondence, specifications, drawings, blueprints, sketches, materials,
equipment, other documents or property, or reproductions of any aforementioned
items belonging to ILOG, Inc., its subsidiaries, affiliates, successors or
assigns (together, the "COMPANY").
I further certify that I have complied with all the terms of the Company's
Confidential Information and Invention Assignment Agreement signed by me,
including the reporting of any inventions and original works of authorship (as
defined therein), conceived or made by me (solely or jointly with others)
covered by that agreement.
I further agree that, in compliance with the Confidential Information and
Invention Assignment Agreement, I will preserve as confidential all trade
secrets, confidential knowledge, data or other proprietary information relating
to products, processes, know-how, designs, formulas, developmental or
experimental work, computer programs, data bases, other original works of
authorship, customer lists, business plans, financial information or other
subject matter pertaining to any business of the Company or any of its
employees, clients, consultants or licensees.
I further agree that for twelve (12) months from this date, I will not
hire any employees of the Company and I will not solicit, induce, recruit or
encourage any of the Company's employees to leave their employment.
Date:_______________
-----------------------------------------
(Employee's Signature)
-----------------------------------------
(Type/Print Employee's Name)
<PAGE> 1
EXHIBIT 4.25
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "AGREEMENT"), dated as of the 20th day
of August, 1997 the ("EFFECTIVE DATE"), by and between ILOG, Inc., a California
corporation (the "COMPANY") and the undersigned employee ("EMPLOYEE") of
Company.
AGREEMENT
NOW, THEREFORE, IT IS HEREBY AGREED by and among the parties hereto as
follows:
1. EMPLOYMENT BY COMPANY; DUTIES.
(a) Employment. Subject to the terms and conditions set forth
herein, the Company hereby agrees to employ Employee in the position of
Technology Fellow, having all the duties and responsibilities customarily
associated with such positions, subject to modification from time to time by the
Company, and Employee hereby accepts such employment by the Company. Employee's
duties shall initially include the development, enhancement and provision of
architectural guidance with respect to CPLEX products and technology. Employee
shall initially report to an officer of the Company or of its parent entity to
be mutually agreed upon by Employee and the Company. With respect to any
modifications of Employee's position and/or duties during the term of Employee's
employment hereunder, the Company shall give due consideration to Employee's
skills and experience in determining the appropriate position and duties of
Employee and shall not, without Employee's consent, modify Employee's position
or duties in a manner inconsistent with Employee's status as a senior technical
advisor of the Company; provided, however, that the foregoing shall in no way
limit the ability of the Company to terminate Employee's employment at any time
for any reason or for no reason. Such employment shall commence on the Effective
Date and shall continue until terminated as provided in Paragraph 3 hereof.
Employee shall not, without the prior written consent of Company, directly or
indirectly, alone or as part of any group, association or organization, be
actively engaged in or concerned with any other duties or pursuits which
interfere with the performance of Employee's duties to Company or which may be
contrary to the best interests of the Company; provided, however, that the
foregoing shall not restrict Employee's right to continue fulfilling his
teaching commitments to Rice University at current levels unless such
commitments materially interfere with his duties to the Company. The Company
acknowledges Employee's academic research activities and shall not unreasonably
withhold its consent to Employee's continuation of such activities at reasonable
levels, so long as such activities do not materially interfere with his duties
to the Company.
(b) Company Policies. The employment relationship between the
parties shall also be governed by the general employment policies and practices
of the Company now in effect or which may become effective in the future,
including those relating to the protection of confidential information and trade
secrets, except that when the terms of this Agreement differ from or are in
conflict with the Company's general employment policies or practices, this
Agreement shall control.
<PAGE> 2
2. COMPENSATION AND BENEFITS.
(a) Base Salary; Bonuses; Compensation for Part-Time
Employment. As compensation for the services to be rendered by Employee during
his Full-Time Employment hereunder, including all services rendered to entities
affiliated with the Company, the Company agrees to pay Employee in accordance
with the Company's regular payroll practices, direct salary compensation at the
rate of $135,000 per year (as adjusted from time to time pursuant to the terms
hereof, the "BASE SALARY"), commencing on the Effective Date. In addition,
Employee shall be eligible to receive a performance bonus in a target amount
which is commensurate with that of similarly situated employees, with the actual
bonus to be determined based on the achievement of performance criteria to be
determined by mutual agreement of the Company and Employee (as adjusted from
time to time pursuant to the terms hereof, the "BONUS"). For purposes of this
Agreement, "FULL-TIME EMPLOYMENT" shall mean all periods of time during which
Employee is devoting all of Employee's working time, attention and energies to
performing Employee's duties to the Company. In the event Employee desires to
reduce the level of Employee's time, attention or energies devoted to the
Company to below Full-Time Employment levels, Employee shall give the Company
sixty day's written notice of such request and the Company shall not
unreasonably deny such request. Such notice shall quantify Employee's desired
level of time, attention and energies to be devoted to the Company and the
effective date of such reduction (any such periods of time during which such
reduction are in effect, "PART-TIME EMPLOYMENT"). Employee may, subject to the
consent of the Company which consent shall not be unreasonably withheld, request
to resume Full- Time Employment or further adjust the level of Employee's
Part-Time Employment upon sixty day's notice. During any period of Part-Time
Employment, Employee's Base Salary and Bonus shall be proportionately adjusted
by the Company in good faith. Such good-faith adjustments by the Company shall
be conclusive and binding on Employee.
(b) Employee Benefits. Employee shall be eligible to
participate in the employee benefit plans and arrangements which are available
or which become available, in the discretion of the Company's Board of
Directors, to other employees of the Company, subject in each case to the
generally applicable terms and conditions of the plan or arrangement in question
and to the determination of any committee administering such plan or
arrangement. The Company's presently available benefits are listed on Exhibit A
hereto. Employee's benefits shall not be reduced during periods of Part-Time
Employment, except that benefits that are based on levels of salary and bonus
compensation, such as moneys paid during periods of paid vacation, shall be
proportionately adjusted by the Company in good faith.
(c) Annual Compensation Review. Employee and the Company shall
review Employee's Base Salary and Bonus structure annually and may make mutually
agreeable adjustments at such times.
3. TERM AND TERMINATION.
(a) Term; Effect of Termination. Unless terminated by either
party as provided below, this Agreement shall remain in full force and effect
until the date three years after the Effective Date (such three year period, the
"DEFAULT TERM") and may be extended for one annual term upon the mutual
agreement of Employee and the Company (any such extension period, the "EXTENDED
TERM"). Provisions of this Agreement that expressly relate to periods of time
following
<PAGE> 3
the term of this Agreement or of Employee's employment shall survive any
termination or expiration of this Agreement or of Employee's employment with the
Company.
(b) Limitation of Liability upon Termination. If Employee's
employment terminates (or is terminated) for any reason (or for no reason),
Employee shall not be entitled to any payments, benefits, damages, awards or
compensation other than as provided in this Agreement, or as may otherwise be
available in accordance with the Company's established employee plans and
policies at the time of termination. Subject to the terms and conditions hereof,
Employee acknowledges that Employee's employment hereunder shall be on an
at-will basis and that Company may terminate Employee's employment hereunder at
any time with or without Cause.
(c) Termination for Cause; Definition of "Cause". Employee's
employment with the Company may be terminated for Cause at any time by the
Company, upon reasonable notice to Employee of the circumstances leading to such
termination for Cause. For the purpose of this Agreement, "CAUSE" shall mean (i)
the substantial and continuing failure to render services to the Company or its
affiliated entities in accordance with Employee's assigned duties (other than as
a result of Employee's Disability, as defined below, or other medically
determinable serious physical impairment), as determined by the Board of
Directors of the Company's parent entity, if such failure remains uncured for a
period of 30 days following delivery of notice to Employee of such failure; (ii)
the conviction of a felony; (iii) gross negligence, dishonesty, breach of
fiduciary duty or material breach of the terms of any confidentiality,
noncompetition or other agreement in favor of the Company or its affiliated
entities; (iv) the commission of an act of fraud or embezzlement which results
in loss, damage or injury to the Company or its affiliated entities, whether
directly or indirectly; or (v) the commission of an act which constitutes unfair
competition with the Company or its affiliated entities or which induces any
customer of the Company or its affiliated entities to break a contract with the
Company or its affiliated entities.
(d) Continuation of Option Vesting upon Certain Events. In
connection with the commencement of Employee's employment with the Company,
Employee has been or will be granted an option to purchase up to 400,000 shares
of ILOG S.A. under its 1996 Stock Option Plan pursuant to an option agreement in
substantially the form attached hereto as Exhibit B (the "OPTION"). Upon
termination of Employee's employment for any reason, Employee shall have the
right to exercise, within 90 days of such termination, the portion of Employee's
Option that is thenexercisable pursuant to the terms and conditions of such
option agreement and such option plan; provided, however, that, notwithstanding
any term of such option agreement or such option plan to the contrary, if at any
time prior to such time as the Option becomes fully vested and exercisable,
either (X) the Company terminates Employee's employment with the Company without
Employee's consent other than for Cause or (Y) Employee dies or becomes Disabled
(as defined below) then, in each case, Employee's Option shall (i) continue to
vest until fully vested and (ii) continue to be exercisable to the extent
vested, in each case, as if Employee had remained alive, not Disabled and
employed by the Company throughout the term of the Option.
(e) Continuation of Salary, Bonus and Benefits upon
Termination without Cause. If the Company terminates Employee's employment with
the Company during the Default Term without Employee's consent other than for
Cause, then, during the remaining Default Term, the Company shall continue to
pay Employee the annual Base Salary and target Bonus in effect
<PAGE> 4
immediately prior to such termination and shall continue to provide Employee
with benefits substantially equivalent to those being provided immediately prior
to such termination.
(f) Definitions of Disability and Disabled. For purposes of
this Agreement, the terms "Disabled" and "Disability" shall refer to a state of
Employee's "permanent and total disability" as such term is defined in Section
22(e)(3) of the Internal Revenue Code of 1986, as amended.
4. PROPRIETARY INFORMATION; NONINTERFERENCE. As a condition to
the effectiveness of this Agreement, Employee shall execute the Proprietary
Information and Invention Assignment Agreement attached hereto as Exhibit C.
5. MISCELLANEOUS.
(a) Notices. Any notice required or permitted hereunder shall
be given in writing and shall be deemed effectively given upon personal delivery
or upon the third day after deposit with the United States Post Office, by
registered or certified mail, postage prepaid, return receipt requested,
addressed to the Company or Employee at the addresses set forth on the signature
page of this Agreement, or at such other address as such party may designate by
ten (10) days advance written notice to the other party.
(b) Severability. Nothing in this Agreement shall be construed
so as to require the commission of any act contrary to law and wherever there is
any conflict between any provision of this Agreement and any law, statute,
ordinance, order or regulation, the latter shall prevail, but in such event any
provision of this Agreement shall be curtailed and limited only to the extent
necessary to bring it within applicable legal requirements. If any provision of
this Agreement should be held invalid or unenforceable, the remaining provisions
shall be unaffected by such a holding.
(c) Tax Matters. Employee has consulted Employee's own
independent tax and legal advisors with respect to the transactions contemplated
by this Agreement and is not relying in any respect on the Company or any
officer, employee, or other agent or representative of the Company to provide
any advice with respect to the federal, state, local or foreign tax consequences
of the transactions contemplated hereby. Employee alone will bear Employee's tax
consequences, if any, associated with the transactions contemplated hereby and
will not seek any reimbursement in connection with any such tax consequences
from the Company.
(d) Complete Agreement. This Agreement and the exhibits
attached hereto contain the entire agreement and understanding between the
parties relating to the subject matter hereof, and supersedes any prior
understandings, agreements, or representations by or between the parties,
written or oral, relating to the subject matter hereof.
(e) Successors and Assigns. This Agreement and the rights and
obligations of the parties hereto shall bind and inure to the benefit of any
successor or successors of the Company by way of reorganization, merger or
consolidation and any assignee of all or substantially all of its business and
assets, but except as to any such successor or assignee of the Company, neither
this Agreement nor any rights or benefits hereunder may be assigned by the
Company or Employee.
<PAGE> 5
(f) Amendments. Notwithstanding anything to the contrary
contained in this Agreement, the parties to this Agreement may make any
modification or amendment to this Agreement only by a mutual agreement in
writing.
(g) Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of California as such laws
are applied to contracts entered into and to be performed entirely within the
State of California.
IN WITNESS WHEREOF, the parties have executed and delivered this
Agreement on the day and year first above written.
ILOG, INC.
By: /s/ Roger Friedberger
------------------------------------------
EMPLOYEE
/s/ Robert Bixby
---------------------------------------------
(Signature)
Robert Bixby
---------------------------------------------
(Print Name)
---------------------------------------------
---------------------------------------------
(Print Address)
---------------------------------------------
(Print Telephone Number)
<PAGE> 6
Exhibit A
While Employee remains employed with the Company, Employee shall be eligible for
all benefits offered to Company employees generally, currently including Aetna
Medical HMO/PPO coverage, dental and vision insurance plans, Accidental Death &
Disability Insurance, Section 125 pre-tax medical and dependent care expense
reimbursement plan, and 401(k) plan. In addition, Employee shall be entitled to
paid vacation during each year of employment of the greater of (i) four weeks or
(ii) the then-current annual paid vacation allowed by the Company's standard
benefit policy (currently three weeks).
<PAGE> 7
Exhibit B
ILOG S.A.
1996 STOCK OPTION GRANT AGREEMENT
PART I
NOTICE OF STOCK OPTION GRANT
Mr. Robert Bixby
----------------
You have been granted an Option to subscribe Shares of the
Company, subject to the terms and conditions of the 1996 Stock Option Plan, as
amended (the "Plan"), and this Option Agreement. Unless otherwise defined
herein, the terms defined in the Plan shall have the same defined meanings in
this Option Agreement.
<TABLE>
<S> <C>
Grant Number: SO96/97/
Date of Grant: August 20, 1997
Vesting Commencement Date: August 20, 1997
Vesting period: Four years
Share Per Value: FF 4.00
Exercise Price per Share: FF 36.84
Total Number of Shares Granted: 400,000
Total Exercise Price: FF 14,736,000
Type of Option: Incentive Stock Option
Term/Expiration Date: Ten Years
</TABLE>
<PAGE> 8
VESTING SCHEDULE:
This Option may be exercised, in whole or in part, in
accordance with the following schedule:
25% of the Shares subject to the Option shall vest twelve
months after the Vesting Commencement Date, and 1/48 of the Shares subject to
the Option shall vest each month thereafter.
Except as may be provided in that certain Employment Agreement
by and between Optionee and ILOG, Inc. dated as of August 20, 1997 (the
"Employment Agreement"), vesting shall continue only during Optionee's
Continuous Status as a Beneficiary.
TERMINATION PERIOD:
Except as provided in the Employment Agreement, this Option
may be exercised for ninety (90) days after termination of the Optionee's
employment or term of office with the Company or an Affiliated Company as the
case may be. Upon the Death or Disability of the Optionee, this Option may be
exercised for such longer period as provided in the Plan or the Employment
Agreement. Save as provided in the Plan, in no event shall this Option be
exercised later than the Term/Expiration Date as provided above.
By his signature and the signature of the Company's
representative below, the Optionee and the Company agree that this Option is
granted under and, except to the extent inconsistent with the Employment
Agreement, governed by the terms and conditions of the Plan and this Option
Agreement. The Optionee has reviewed the Plan and this Option Agreement in their
entirety, has had the opportunity to obtain advice of counsel prior to executing
this Option Agreement and fully understands all provisions of the Plan and
Option Agreement. The Optionee hereby agrees to accept as binding, conclusive
and final all decisions or interpretations of the Administrator upon any
questions relating to the Plan and Option Agreement which are not governed by
the Employment Agreement. The Optionee further agrees to notify the Company upon
any change in the residence address indicated below.
The Company and the Optionee recognize that the Plan has been
prepared both in the French and the English language. The French version is the
version that binds the parties, notwithstanding this, the English version
represents an acceptable translation and, consequently, no official translation
will be required for the interpretation of this agreement.
OPTIONEE: ILOG S.A.
- ------------------------------------- By:_____________________________
Signature
Print Name Name: Roger Friedberger
- ------------------------------------- Title: Chief Financial Officer
Residence Address
- -------------------------------------
<PAGE> 9
ILOG S. A.
1996 STOCK OPTION GRANT AGREEMENT
PART II
TERMS AND CONDITIONS
1. Grant of Option. The Plan Administrator of the Company hereby
grants to the Optionee named in the Notice of Grant attached as Part I of this
Agreement (the "Optionee"), an option (the "Option") to subscribe the number of
Shares, as set forth in the Notice of Grant, at the exercise price per Share set
forth in the Notice of Grant (the "Exercise Price"), subject to the terms and
conditions of the 1996 Stock Option Plan, as amended, which is incorporated
herein by reference. In the event of a conflict between the terms and conditions
of the Plan and the terms and conditions of this Option Agreement, the terms and
conditions of the Plan shall prevail.
If designated in the Notice of Grant as an Incentive Stock Option, this
Option is intended to qualify as an Incentive Stock Option under Section 422 of
the Code. However, if this Option is intended to be an Incentive Stock Option,
to the extent that it exceeds the $100,000 rule of Code Section 422(d) it shall
be treated as a Non-statutory Stock Option.
2. Exercise of Option.
(a) Right to Exercise. This Option is exercisable during its term in
accordance with the Vesting Schedule set out in the Notice of Grant and the
applicable provisions of the Plan and this Option Agreement. In the event of
Optionee's death, disability or other termination of Optionee's employment or
term of office, the exercisability of the Option is governed by the applicable
provisions of the Plan and this Option Agreement.
(b) Method of Exercise. This Option is exercisable by delivery of an
exercise notice, in the form attached hereto (the "Exercise Notice"), comprising
a share subscription form (bulletin de souscription) which shall state the
election to exercise the Option, the number of Shares in respect of which the
Option is being exercised (the "Exercised Shares"), and such other
representations and agreements as may be required by the Company pursuant to the
provisions of the Plan. The Exercise Notice shall be signed by the Optionee and
shall be delivered in person or by certified mail to the Company or its
designated representative or by facsimile message to be immediately confirmed by
certified mail to the Company. The Exercise Notice shall be accompanied by
payment of the aggregate Exercise Price as to all Exercised Shares. This Option
shall be deemed to be exercised upon receipt by the Company of such fully
executed Exercise Notice accompanied by such aggregate Exercise Price.
No Shares shall be issued pursuant to the exercise of this
Option unless such issuance and exercise complies with all relevant provisions
of law as set out under Section 14(a) of the Plan.
<PAGE> 10
Upon the issuance of the Shares, the Optionee shall be
entitled to receive such Shares in the form of American Depositary Shares by
completing and signing the appropriate box of the Exercise Notice attached
hereto.
3. Method of Payment. Payment of the aggregate Exercise Price
shall be by any of the following, or a combination thereof, at the election of
the Optionee:
(1) wire transfer;
(2) check;
(3) delivery of a properly executed notice together with such
other documentation as the Administrator and the broker, if
applicable, shall require to effect exercise of the Option and
delivery to the Company of the sale or loan proceeds required
to pay the exercise price; or
(4) any combination of the foregoing methods of payment.
4. Non-Transferability of Option. This Option may not be
transferred in any manner otherwise than by will or by the laws of descent or
distribution and may be exercised during the lifetime of the Optionee only by
the Optionee. The terms of the Plan and this Option Agreement shall be binding
upon the executors, administrators, heirs, successors and assigns of the
Optionee.
5. Terms of Option. Subject as provided in the Plan, this Option
may be exercised only within the term set out in the Notice of Grant, and may be
exercised during such term only in accordance with the Plan and the terms of
this Option Agreement.
6. Entire Agreement; Governing Law. The Plan is incorporated
herein by reference. The Plan, this Option Agreement and the Employment
Agreement constitute the entire agreement of the parties with respect to the
subject matter hereof and supersede in their entirety all prior undertakings and
agreements of the Company and Optionee with respect to the subject matter
hereof, and may not be modified adversely to the Optionee's interest except by
means of a writing signed by the Company and Optionee. In the event of any
conflict between the provisions of this Option Agreement and the provisions of
the Employment Agreement, the Employment Agreement shall, to the extent of such
conflict, control. This Option Agreement is governed by the laws of the Republic
of France.
Any claim or dispute arising under the Plan or this Agreement shall be subject
to the exclusive jurisdiction of the Tribunal de Grande Instance of Creteil.
<PAGE> 11
CONSENT OF SPOUSE
(TO BE SIGNED BY RESIDENT OF CALIFORNIA AND OTHER COMMUNITY PROPERTY STATES)
The undersigned spouse of Optionee has read and hereby
approves the terms and conditions of the Plan and this Option Agreement. In
consideration of the Company's granting his or her spouse the right to subscribe
Shares as set forth in the Plan and this Option Agreement, the undersigned
hereby agrees to be irrevocably bound by the terms and conditions of the Plan
and this Option Agreement and further agrees that any community property
interest shall be similarly bound. The undersigned hereby appoints the
undersigned's spouse as attorney-in-fact for the undersigned with respect to any
amendment or exercise of rights under the Plan or this Option Agreement.
------------------------------------
Spouse of Optionee
<PAGE> 12
EXHIBIT A
ILOG S.A.
SOCIETE ANONYME HAVING A SHARE CAPITAL OF 24,798,780 FRANCS
REGISTERED OFFICE: []
1996 STOCK OPTION PLAN
EXERCISE NOTICE
(SHARE SUBSCRIPTION FORM)
ILOG S.A.
[]
Date:
Attention:
1. Exercise of Option. Effective as of today, _______, 199_, the
undersigned hereby elects to subscribe ______ ( ) shares (the
"Shares") of the Common Stock of ILOG S.A. (the "Company")
under and pursuant to the Company's 1996 Stock Option Plan
(the "Plan") adopted by the Board of Directors on May 30,
1996, as amended and the Stock Option Agreement dated ______,
199_, (the "Option Agreement"). The subscription price for the
Shares shall be FF _____, as required by the Option Agreement.
2. Delivery of Payment. Purchaser herewith delivers to the
Company the full subscription price for the Shares.
3. Representation of Optionee. The Optionee acknowledges that
Optionee has received, read and understood the Plan and the
Option Agreement and agrees to abide by and be bound by their
terms and conditions.
4. Rights as Shareholder. Until the issuance (as evidenced by the
appropriate entry on the books of the Company) of the Shares,
the Optionee shall have, as an Optionee, no right to vote or
receive dividends or any other rights as a shareholder shall
exist with respect to the Optioned Stock, except those the
Optionee may have as a shareholder of the Company. No
adjustment will be made for rights in respect of which the
record date is prior to the issuance date for the Shares,
except as provided in Section 11 of
<PAGE> 13
the Plan.
5. Tax Consultation. The Optionee understands that Optionee may
suffer adverse tax consequences as a result of Optionee's
subscription or disposition of the Shares. Optionee represents
that Optionee has consulted with any tax consultants Optionee
deems advisable in connection with the subscription or
disposition of the Shares. The Optionee is not relying on the
Company for any tax advice.
6. Entire Agreement; Governing Law. The Plan and Option Agreement
are incorporated herein by reference. Reference is made to
that certain Employment Agreement by and between Optionee and
ILOG, Inc. dated as of August __, 1997 (the "Employment
Agreement"). This Exercise Notice, the Plan the Option
Agreement and the Employment Agreement constitute the entire
agreement of the parties with respect to the subject matter
hereof and supersede in their entirety all prior undertakings
and agreements of the Company and Optionee with respect to the
subject matter hereof, and may not be modified adversely to
the Optionee's interest except by means of a writing signed by
the Company and Purchaser. In the event of any conflict
between the provisions of this Exercise Notice and the
provisions of the Employment Agreement, the Employment
Agreement shall, to the extent of such conflict, control. This
Exercise Notice is governed by the laws of the Republic of
France.
This Exercise Notice is delivered in two originals, one of which shall be
returned to the Optionee.
Submitted by: Accepted by:
OPTIONEE(*) ILOG S.A.
- -------------------------------------
Signature by:
- ------------------------------------- Its: CEO
Print Name
ADDRESS: ADDRESS:
ILOG S.A.
- ---------------------------
(*) The signature of the Optionee must be preceded by the following manuscript
mention "accepted for formal and irrevocable subscription of Shares."
<PAGE> 14
Exhibit C
ILOG, INC.
CONFIDENTIAL INFORMATION AND
INVENTION ASSIGNMENT AGREEMENT
As a condition of my employment with ILOG, INC., its subsidiaries,
affiliates, successors or assigns (together the "COMPANY"), and in consideration
of my employment with the Company and my receipt of the compensation now and
hereafter paid to me by Company, I agree to the following:
1. CONFIDENTIAL INFORMATION.
(a) COMPANY INFORMATION. I agree at all times during the term of my
employment and thereafter, to hold in strictest confidence, and not to use,
except for the benefit of the Company, or to disclose to any person, firm or
corporation without written authorization of the Company, any Confidential
Information of the Company. I understand that "CONFIDENTIAL INFORMATION" means
any Company proprietary information, technical data, trade secrets or know-how,
including, but not limited to, research, product plans, products, services,
customer lists and customers (including, but not limited to, customers of the
Company on whom I called or with whom I became acquainted during the term of my
employment), markets, software, developments, inventions, processes, formulas,
technology, designs, drawings, engineering, hardware configuration information,
marketing, finances or other business information disclosed to me by the Company
either directly or indirectly in writing, orally or by drawings or observation
of parts or equipment. I further understand that Confidential Information does
not include any of the foregoing items which has become publicly known and made
generally available through no wrongful act of mine or of others who were under
confidentiality obligations as to the item or items involved.
(b) FORMER EMPLOYER INFORMATION. Except as provided in the Technology
Access Letter, I agree that I will not, during my employment with the Company,
improperly use or disclose any proprietary information or trade secrets of any
former or concurrent employer or other person or entity and that I will not
bring onto the premises of the Company any unpublished document or proprietary
information belonging to any such employer, person or entity unless consented to
in writing by such employer, person or entity.
(c) THIRD PARTY INFORMATION. I recognize that the Company has
received and in the future will receive from third parties their confidential or
proprietary information subject to a duty on the Company's part to maintain the
confidentiality of such information and to use it only for certain limited
purposes. I agree to hold all such confidential or proprietary information in
the strictest confidence and not to disclose it to any person, firm or
corporation or to use it except as necessary in carrying out my work for the
Company consistent with the Company's agreement with such third party.
2. INVENTIONS.
(a) INVENTIONS RETAINED AND LICENSED. I have attached hereto, as
Exhibit A, a list describing
<PAGE> 15
all inventions, original works of authorship, developments, improvements, and
trade secrets which were made by me prior to my employment with CPLEX or the
Company (collectively referred to as "PRIOR INVENTIONS"), which belong to me,
which relate to the Company's proposed business, products or research and
development, and which are not assigned to the Company hereunder; or, if no such
list is attached, I represent that there are no such Prior Inventions. If in the
course of my employment with the Company, I incorporate into a Company product,
process or machine a Prior Invention owned by me or in which I have an interest,
the Company is hereby granted and shall have a nonexclusive, royalty-free,
irrevocable, perpetual, worldwide license to make, have made, modify, use and
sell such Prior Invention as part of or in connection with such product, process
or machine.
(b) ASSIGNMENT OF INVENTIONS. Save with respect to Inventions (as
defined herein) made by me in the course of research collaboration projects with
third party co-workers outside the scope of my employment with the Company,
which Inventions are inextricably interwoven with those of such third party
co-workers, I agree that I will promptly make full written disclosure to the
Company, will hold in trust for the sole right and benefit of the Company, and
hereby assign to the Company, or its designee, all my right, title, and interest
in and to any and all inventions, original works of authorship, developments,
concepts, improvements or trade secrets, whether or not patentable or
registrable under copyright or similar laws, which I may solely or jointly
conceive or develop or reduce to practice, or cause to be conceived or developed
or reduced to practice, during the period of time I am in the employ of the
Company (collectively referred to as "INVENTIONS"), except as provided in
Section 2(e) below. I further acknowledge that, except as provided in Section
2(e) below, all original works of authorship which are made by me (solely or
jointly with others) within the scope of and during the period of my employment
with the Company and which are protectible by copyright are "works made for
hire," as that term is defined in the United States Copyright Act. For purposes
of this Section 2(b), I hereby undertake and agree that I will not knowingly or
intentionally embark on any new research collaboration projects which would be
outside of the scope of those undertaken by me as of the date hereof without
prior consultation with the Company.
(c) MAINTENANCE OF RECORDS. I agree to keep and maintain adequate and
current written records of all Inventions made by me (solely or jointly with
others) during the term of my employment with the Company. The records will be
in the form of notes, sketches, drawings, and any other format that may be
specified by the Company. The records will be available to and remain the sole
property of the Company at all times.
(d) PATENT AND COPYRIGHT REGISTRATIONS. I agree to assist the
Company, or its designee, at the Company's expense, in every proper way to
secure the Company's rights in the Inventions and any copyrights, patents, mask
work rights or other intellectual property rights relating thereto in any and
all countries, including the disclosure to the Company of all pertinent
information and data with respect thereto, the execution of all applications,
specifications, oaths, assignments and all other instruments which the Company
shall deem necessary in order to apply for and obtain such rights and in order
to assign and convey to the Company, its successors, assigns, and nominees the
sole and exclusive rights, title and interest in and to such Inventions, and any
copyrights, patents, mask work rights or other intellectual property rights
relating thereto. I further agree that my obligation to execute or cause to be
executed, when it is in my power to do so, any such instrument or papers shall
continue after the termination of this Agreement. If the Company is unable
because of my mental or physical incapacity or for any other reason to secure my
signature to apply for or to pursue any application for any United
<PAGE> 16
States or foreign patents or copyright registrations covering Inventions or
original works of authorship assigned to the Company as above, then I hereby
irrevocably designate and appoint the Company and its duly authorized officers
and agents as my agent and attorney in fact, to act for and in my behalf and
stead to execute and file any such applications and to do all other lawfully
permitted acts to further the prosecution and issuance of letters patent or
copyright registrations thereon with the same legal force and effect as if
executed by me.
(e) EXCEPTION TO ASSIGNMENTS. I understand that the provisions of
this Agreement requiring assignment of Inventions to the Company do not apply to
any invention which qualifies fully under the provisions of California Labor
Code Section 2870 (attached hereto as Exhibit A1).
3. CONFLICTING EMPLOYMENT. I agree that, during the term of my employment
with the Company, I will not engage in any other employment, occupation,
consulting or other business activity directly related to the business in which
the Company is now involved or becomes involved during the term of my
employment, nor will I engage in any other activities that conflict with my
obligations to the Company provided, however, that the Company recognizes and
agrees to my continued academic association and activities with respect to Rice
University.
4. RETURNING COMPANY DOCUMENTS. Save as provided in the Technology Access
Letter, I agree that, at the time of leaving the employ of the Company, I will
deliver to the Company (and will not keep in my possession, recreate or deliver
to anyone else) any and all devices, records, data, notes, reports, proposals,
lists, correspondence, specifications, drawings blueprints, sketches, materials,
equipment, other documents or property, or reproductions of any aforementioned
items developed by me pursuant to my employment with the Company or otherwise
belonging to the Company, its successors or assigns. In the event of the
termination of my employment, I agree to sign and deliver the "Termination
Certification" attached hereto as Exhibit B.
5. NOTIFICATION OF NEW EMPLOYER. In the event that I leave the employ of
the Company, I hereby grant consent to notification by the Company to my new
employer about my rights and obligations under this Agreement.
6. REPRESENTATIONS. I agree to execute any proper oath or verify any
proper document required to carry out the terms of this Agreement. I represent
that my performance of all the terms of this Agreement will not breach any
agreement to keep in confidence proprietary information acquired by me in
confidence or in trust prior to my employment by the Company. I have not entered
into, and I agree I will not enter into, any oral or written agreement in
conflict herewith.
7. ARBITRATION AND EQUITABLE RELIEF.
(a) ARBITRATION. Except as provided in Section 8(b) below, I agree
that any dispute or controversy arising out of or relating to any
interpretation, construction, performance or breach of this Agreement, shall be
settled by arbitration to be held in Santa Clara County, California, in
accordance with the rules then in effect of the American Arbitration
Association. The arbitrator may grant injunctions or other relief in such
dispute or controversy. The decision of the arbitrator shall be final,
conclusive and binding on the parties to the arbitration. Judgment may be
entered on the arbitrator's decision in any court having jurisdiction. The
Company and I shall each pay one-half of the costs and
<PAGE> 17
expenses of such arbitration, and each of us shall separately pay our counsel
fees and expenses.
(b) EQUITABLE REMEDIES. I agree that it would be impossible or
inadequate to measure and calculate the Company's damages from any breach of the
covenants set forth in Sections 1, 2, and 4 herein. Accordingly, I agree that if
I breach any of such Sections, the Company will have available, in addition to
any other right or remedy available, the right to obtain an injunction from a
court of competent jurisdiction restraining such breach or threatened breach and
to specific performance of any such provision of this Agreement.
8. GENERAL PROVISIONS.
(a) GOVERNING LAW; CONSENT TO PERSONAL JURISDICTION. This Agreement
will be governed by the laws of the State of California. I hereby expressly
consent to the personal jurisdiction of the state and federal courts located in
California for any lawsuit filed there against me by the Company arising from or
relating to this Agreement.
(b) ENTIRE AGREEMENT. This Agreement sets forth the entire agreement
and understanding between the Company and me relating to the subject matter
herein and merges all prior discussions between us. No modification of or
amendment to this Agreement, nor any waiver of any rights under this agreement,
will be effective unless in writing signed by the party to be charged. Any
subsequent change or changes in my duties, salary or compensation will not
affect the validity or scope of this Agreement.
(c) SEVERABILITY. If one or more of the provisions in this Agreement
are deemed void by law, then the remaining provisions will continue in full
force and effect.
(d) SUCCESSORS AND ASSIGNS. This Agreement will be binding upon my
heirs, executors, administrators and other legal representatives and will be for
the benefit of the Company, its successors, and its assigns.
Date: August__, 1997
-----------------------------------
Signature
Employee
- ------------------------
Witness
<PAGE> 18
EXHIBIT A1
CALIFORNIA LABOR CODE SECTION 2870
EMPLOYMENT AGREEMENTS; ASSIGNMENT OF RIGHTS
"(a) Any provision in an employment agreement which provides that an
employee shall assign, or offer to assign, any of his or her rights in an
invention to his or her employer shall not apply to an invention that the
employee developed entirely on his or her own time without using the employer's
equipment, supplies, facilities, or trade secret information except for those
inventions that either:
(1) Relate at the time of conception or reduction to practice of the
invention to the employer's business, or actual or demonstrably anticipated
research or development of the employer.
(2) Result from any work performed by the employee for the employer.
(b) To the extent a provision in an employment agreement purports to
require an employee to assign an invention otherwise excluded from being
required to be assigned under subdivision (a), the provision is against the
public policy of this state and is unenforceable."
<PAGE> 19
EXHIBIT B
ILOG, INC.
TERMINATION CERTIFICATION
This is to certify that I do not have in my possession, nor have I failed
to return, any devices, records, data, notes, reports, proposals, lists,
correspondence, specifications, drawings, blueprints, sketches, materials,
equipment, other documents or property, or reproductions of any aforementioned
items belonging to ILOG, Inc., its subsidiaries, affiliates, successors or
assigns (together, the "COMPANY").
I further certify that I have complied with all the terms of the Company's
Confidential Information and Invention Assignment Agreement signed by me,
including the reporting of any inventions and original works of authorship (as
defined therein), conceived or made by me (solely or jointly with others)
covered by that agreement.
I further agree that, in compliance with the Confidential Information and
Invention Assignment Agreement, I will preserve as confidential all trade
secrets, confidential knowledge, data or other proprietary information relating
to products, processes, know-how, designs, formulas, developmental or
experimental work, computer programs, data bases, other original works of
authorship, customer lists, business plans, financial information or other
subject matter pertaining to any business of the Company or any of its
employees, clients, consultants or licensees.
I further agree that for twelve (12) months from this date, I will not
hire any employees of the Company and I will not solicit, induce, recruit or
encourage any of the Company's employees to leave their employment.
Date:____________
----------------------------------
(Employee's Signature)
----------------------------------
(Type/Print Employee's Name)
<PAGE> 1
EXHIBIT 4.26
[ON ILOG S.A. LETTERHEAD]
Dear Dr. Bixby:
In connection with the acquisition by ILOG S.A. (the "Company") of
substantially all of the assets of CPLEX Optimization, Inc. ("CPLEX") pursuant
to the Asset Purchase Agreement dated August 4, 1997 (the "Agreement"), and
because it is in the Company's and your best interests, I have summarized below
the terms and conditions of your continued access and rights to the CPLEX
software and technology.
1. Consistent with your employment with the Company, you will be
granted access to the source code for a period expiring on the latest of (x)
five years from the Closing Date (as defined under the Agreement) and (y) the
date of termination of your employment by the Company provided, however, that
should your employment be terminated for "cause" (as defined in your Employment
Agreement with the Company's Subsidiary) or by your voluntary resignation, then
your access to the source code shall be withdrawn.
2. Upon your written request made to the Company, the Company will
grant non-transferable object code licenses to academic institutions for
purposes of promotion of research and (a) regular updates will be made available
to such licensees for so long as your employment continues with Company; and (b)
a perpetual license of the current version of the software will be granted to
such licensees upon termination of your employment with the Company.
3. Upon your written request made to Company, an unlimited number of
non-transferable object code licenses will be granted to Rice University on the
same terms and subject to the same conditions as the academic licenses referred
to in 2 above provided, however, that such licenses are CPU specific, with
updates provided for the duration of your association with Rice. After
termination of your association with Rice, such licenses will be perpetual but
will be without any commitment to update.
4. You will be granted perpetual object code CPU specific licenses with
updates for a "modest" number of CPU's.
5. You will be granted perpetual access to the problem test bed. For
purposes of this paragraph "test bed" means the collection of proprietary
problems existing at the time of termination of your employment with Company.
Upon such termination, you will be entitled to retain a copy of the test bed.
<PAGE> 2
6. Non-CPU specific object code licenses will be granted for your two
TSP co-workers so long as they remain co-workers.
7. You will be entitled to give talks and teach classes related to the
CPLEX LP/MIP as you have done in the past provided that such discussions may not
relate to any products or derivative products beyond those that you would
otherwise have access to in accordance with the above provisions.
The above access and rights to CPLEX software and technology are
conditional upon the following:
a) such access and rights will be exercised in a manner consistent with
the protection of the Company's confidential information and the protection of
its intellectual property rights;
b) such access and rights will be used for academic research purposes
only and may not be used by you or licensed or otherwise used by or on behalf of
any third party for any commercial purpose; and
c) following the termination of your employment with the Company for
any reason you will be subject to the same confidentiality obligations as those
in force during your employment.
This letter is addressed to you personally and is not for the benefit
of any third party and does not of itself constitute the grant of a license.
Sincerely,
/s/ Pierre Haren
---------------------------------
Pierre Haren
Chief Executive Officer
READ, UNDERSTOOD AND AGREED
/s/ Robert Bixby
- ---------------------------
Robert Bixby
<PAGE> 1
EXHIBIT 13.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement
(Form S-8 No. 333-23919) pertaining to the 1989 Stock Option Plan, the 1992
Stock Option Plan, the 1996 Stock Option Plan, 1996 International Employee
Stock Purchase Plan and 1996 French Employee Savings Plan of ILOG S.A. or our
reports dated July 23, 1997 (except for Notes 5 and 11 to the consolidated
financial statements, for which the date is August 20, 1997), with respect to
the consolidated financial statements and schedule of ILOG S.A. included in its
Annual Report (Form 20-F) filed with the Securities and Exchange Commission.
ERNST & YOUNG Audit
/s/ Deborah CHOATE
----------------------------------
Represented by
Deborah CHOATE
Paris, France
September 26, 1997
